Posted by Steve Tobak
These days, everybody and his dog has a blog. Unfortunately, almost nobody has a clue about their responsibility under defamation law. And if the dog has a clue, he ain't talkin'.
Most professional writers and members of the media are familiar with this stuff, but chances are, you're not. If you write, host, or even comment on a blog, you need to be. That's because, according to the U.S. Supreme Court, we all have the same rights and responsibilities under defamation law.
Now, I confess to not being a lawyer. But I am a blogger who would like to stay out of court. I've also run marketing for a few companies and have spent way too much time with lawyers, so I do know a fair amount about this stuff.
Since legalese can be intimidating, I thought I'd attempt a plain-English overview of the subject. I'd also like to invite those more knowledgeable than me to comment. Keep in mind that this is intended to open your eyes, not provide legal advice, which I'm certainly not qualified to do.
Seal of U.S. Supreme Court
First, people usually ask the wrong question: "Can a blogger be sued for defamation?" The sad truth is that almost anybody can sue you for almost anything these days. So, don't ask that question; it's dumb. What you want to know is your responsibility under the law, and therefore, how best to protect yourself from successful litigation.
To prove libel, which is the same thing as written defamation, the plaintiff has to prove that the blogger published a false statement of fact about the plaintiff that harmed the plaintiff's reputation. Let's break that down.
"Published" means that at least one other person may have read the blog. That's right, just one.
A "false statement of fact" is a statement about the plaintiff that is not true. Truth is the best defense against libel. An opinion is also a defense against libel. But, depending on the context, the difference between an opinion and a statement of fact can be remarkably gray. Context is a big deal in determining defamation.
One thing to watch out for: simply inserting the words "in my opinion" in front of a statement of fact doesn't magically make it an opinion.
Satire and hyperbole can also be defenses against libel, but again, very gray.
Then there's the matter of "harming the plaintiff's reputation." It's one thing to say that a false statement harmed your reputation, but if you can't demonstrate damages, the suit may be effectively worthless. Damages would include, for example, losing X customers that represent Y income, suffering emotional distress and so on. Also, if your damages are minimal, you may have a hard time finding a lawyer to take the case. They're a greedy lot. (That's an opinion, not a statement of fact.)
If the plaintiff is your average, everyday, run-of-the-mill person or company, then negligence is sufficient to prove libel. That means that a reasonable person would not have published the defamatory statement. If the plaintiff is a "public figure," however, then the plaintiff must prove actual malice--a higher burden of proof. That means that the blogger knew that the statement wasn't true or didn't care.
Then there's the question of who's responsible for comments on a blog. Whoever publishes the Web site is responsible for content on the site. That includes comments. However, many bloggers have independent agreements to indemnify the site that publishes their blog. That may or may not include comments.
Plaintiffs can certainly sue everybody in the chain and see what sticks, though they will likely go after those with the deepest pockets. You can avoid the entire question by turning comments off.
To make matters worse, this is the Internet, so there are individual state and national laws to consider. I'm going to stick with California and U.S. law, and hope for the best.
You may be able to get insurance for this sort of thing. I was able to get a quote for what's called media liability insurance, but it was expensive and had a high deductible. It also took lots of time and and paperwork just to get the quote. In any case, a business insurance broker should be able to quote you a policy from one of their carriers.
Well, those are the basics. Check out this EFF site on defamation for FAQs and examples. You can probably spend a lifetime understanding different scenarios and studying case law.
As for me, I'm planning to play it safe. I mean, how hard can it be to say nice things about people?
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