Blogging & the Law

Presentation courtesy of

Defamation

• A defamatory statement injures the good name of an individual/company and lowers their standing in the community

• Two kinds of defamation– Libel– Slander

Slander

• Slander– Spoken word defamation– Said to a third person but

not printed or broadcast

Libel

• Libel– Defamation in a tangible medium (print, Internet

or broadcast)– To prove libel, you must show that:• Harm was caused• The story was published or broadcast• The person/company was identified by name• The media was at fault or error• The broadcast/published facts must be false

Fair Comment

• Truth is the best defense against libel• Opinions also have some protection– Include facts to back up your opinion– Label your statement as “opinion”– Make sure the context is clear

• Times Co. vs. Sullivan (1964): Court decision that actual malice must be proved

Privacy

• People have the right to be left alone• To avoid invading someone’s privacy:– Obtain consent from the individual if taping• Do not record phone calls or tape someone without

their knowledge

– Do not release private information on an employee

Privacy

• It is more difficult to legally invade the privacy of public figures (celebrities, athletes, politicians) since they surrender their privacy rights by the profession they choose

Litigation Risks

• Copyright Infringement• Invasion of Privacy• Defamation• Sexual Harassment• Hostile Work Environment Claims• Other Legal Risks

Copyright Infringement

• Copyrighted content on your blog can result in legal action– Example:• ABC vs. “Spocko’s Brain”

“Deep Linking”

• The legality is in debate– Most courts have found that you can “deep link” into another

person’s content• Shetland Times vs. Shetland News• Ticketmaster vs. Microsoft• Ticketmaster vs. Tickets.com

– Exceptions:• In Dec. 2006, a new court ruling in Texas found the opposite

– SFX Motorsports vs. SuperCrossLive.com

Invasion of Privacy

• Disclosure of personal facts that were not previously known to public– A public figure has less recourse than a private

citizen• Can I be sued?– Perhaps. If it is not deemed “newsworthy” and it

causes harm to the individual’s reputation and well-being

Invasion of Privacy

• Example:– Washingtonienne.com• A woman in Washington D.C. posts details of her

“affairs” with prominent political figures• One politician sued for $20 million claiming “invasion of

privacy”

Defamation Online

• The US Supreme Court has said that blogs have the same protections as traditional media:– "in the context of defamation law, the rights of

the institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities."

Opinion

• The labeling of a blog published statement as “opinion” does not guarantee that it won’t be found to be libelous– Courts ask: “Would a ‘reasonable’ person confuse

your statement for fact?” – The context of the statement is also examined• Chat rooms and blog “comments” are usually seen as

“opinion” by design and are more likely to be exempt from “libel”

Examples of Actual Cases

• Considered Libelous (when false):– Calling an attorney a "crook" – Describing a woman as a call girl – Accusing a minister of unethical conduct – Accusing a father of violating the confidence of

son

Examples of Actual Cases

• NOT Libelous:– Calling a TV show participant a "local loser,"

"chicken butt" and "big skank" – Calling someone a "bitch" or a "son of a bitch" – Changing product code name from "Carl Sagan" to

"Butt Head Astronomer"

Trade Libel

• Trade libel is defamation against the goods or services of a company or business. – For example, saying that you found a severed

finger in you're a particular company's chili (if it isn't true).

Defamation in Blogs

• If you repeat someone else's defamatory statement in your blog, can you be found to be held at the same standard as the original speaker?– This would have great implications for

“guestbooks” and “comments” that are left online and/or unmoderated

Defamation Online

• Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act– Provides a strong protection against liability for

Internet "intermediaries" who provide or republish speech by others.

Section 230 of the CDA

• Protects bloggers in most circumstances– Bloggers are not liable for defamatory content

written by “third parties”• Comments• RSS Feeds• Chat rooms

– This protection does not necessarily apply to you if you hand select and publish the above content

Defamation

• $11.1 million awarded in Oct. 2006 in a widely observed suit– Largest fine of its kind– A woman posted negative comments about a

business owner after their transaction went bad• Used terms “crook,” “con artist” and “fraud”

Sexual Harassment

• 27 workers fired for sexually-charged blogs and postings on MySpace– The Auto Club of Southern California employees

made comments about weight and sexual orientation of other workers through their postings and “Friends” comments

Security Breaches

• Loss of Trade Secrets• Confidential Information• Intellectual Property

Apple vs. Does

• Apple Computer sued various blog and indie news sites to reveal the source of leaked “trade secrets” relating to a music project– The “Does” are “John Does”• They are the unknown parties that leaked the

documents

Apple vs. Does

• Apple attempted to subpoena the ISP to give up the e-mail records of those involved

• A court ruled that the bloggers/sites were allowed to the same constitutional protections as traditional journalists

• Apple was further ordered to pay $700,000 in legal fees

Resources

• Electronic Frontier Foundation’s Legal Guide for Bloggers

• Citizen Media Law Project• Media Bloggers Association