Friday, August 19, 2005

Libel Revisited

Last February, I interviewed a few attorneys about blogs and libel.

Sadly, February in the blog world is like 2 years ago. Now, there are more and more bloggers signing on everyday, and a fresh crop of blog consultants starting businesses. Now, there are stories that are only being picked up in blogs, and then they are being pushed for other bloggers' own agendas and goals. Now is the time that libel is just as an important piece more than ever.

So, before we go off calling people liars in the blogosphere, or saying things that can potentially open ourselves up to libel, I think a refresher course is in order.

Thus, here begins the republishing of a part of an article from back in February. In purple.

Can blogs be sued for libel?

It is inevitable, and has already happened. Blogs have received notices from attorneys that they are being sued for libel, but typical of the blogosphere, they don't take these threats seriously. I have read in various blogs that libel suits are rarely won, or that the blog is protected by the courts. But, if push comes to shove, how many bloggers have the deep pockets to fight a libel lawsuit? Or, are most bloggers like Rakim, digging deeper into the pockets and still coming up with lint ...

Is it worth pushing the boundaries in a blog to get traffic, then end up in a libel suit? Are certain blogs that we all have seen - making fun of ugly people on the Web, making fun of Star Wars fans - worth the potential for a libel lawsuit?

To answer all these questions, I interviewed David E. McCraw, Counsel for The New York Times Co. I figured the counsel for a newspaper as prestigious as the New York Times would be able to provide some good insight on libel for bloggers:
It's going to happen that someone will blog, and the response will be a lawsuit. Look at all the high school journals with compromising photos of friends. It's going to be something that willl be sued over - an intra-high schol suit that won't get major coverage.

With blogs now being published under the writer's name, and easily identifiable and writing on public topics, there's no reason why blogs are not being sued for libel.

In public figure libel cases, the public figure has to prove that what's written is maliciously known to be false. The private individual, though, only has to prove that a reporter is being careless - was the individual called? Were questions asked? In reporting, these are the questions that need to be answered to protect against libel.

Bloggers, though, blog on belief. Bloggers are like disc jockeys rather than reporters - they say what's on their mind.

There are three interesting set of legal issues for bloggers:
  1. Republisher Liability: the site is used to post letters, responses, chat rooms, message boards. For the Republisher site, the Website is a neutral conduit, and cannot be sued. The Ninth Circuit Court of Appeals ruled that such sites - including blogs that republish/link from other sources - are protected against libel.
  2. Originator Liability: the Website can't be sued, but you can be sued. If you post on a blog, even though it is a neutral conduit and is protected, the originator is open to liability. The safe harbor is not true for everyone.
  3. Protection against subpoenas: the Website falls under the shield law case, with unpublished material you don't want to testify about. The third case is currently at issue with the lawsuits against the Apple bloggers - and, the issue is whether or not those bloggers are protected as a journalist would be.
Unfortunately, many bloggers think that their blogs fall under the protection of the Ninth Circuit Court's ruling. This isn't so. If a blogger posts libelous content that is original, it is still libel.

Do bloggers deserve the same protection as journalists? On one side, it obvious that bloggers are journalists, and on the other side, people are just having private conversations. Bloggers are trying to sit on both sides of the fence - citizen journalists and personal journals. They want the protection of shield law as a journalist, but at the same time not worry about fact checking since it is just a blog.

Originally, people thought that since blogs had low readership there was no real reason to worry about libel. But, now the way that search engines work, blogs are being easily found - with comments and posts of an unflattering nature.

What happens on blogs now is that posts are being picked up by major media outlets. The lonely, personal essayist is no longer true for blogs. There are now blogs that are influential and being picked up, and if it construed as factual information, there needs to be a level of fact checking. If it is false, the original source - the blogger - may be subject to liability just as much as a newspaper.

Suing a blogger might not be worth the hassle, though. First, you have to prove that people have read the post, that you were damaged by it, then find the person that posted the libelous content, find the court that has the jurisdiction ... it is extremely difficult to deal with these hurdles in an economic way.

It is unlikely that a person of prominence will sue a blog, because of the high hurdle public officials need to take. But, blogs and the potential of libel raise interesting legal issues.

One more thought - In Europe, particularly the UK, libel laws are different. Unlike the States - where it is the plaintiff who is responsible for proving libel - in the UK it is up to the defendant to prove that what they wrote was true. (Interesting side note is that the Wall Street Journal just won a libel case in the UK, proving that only 5 people read the article).
I also spoke with a local attorney I know to get his views on libel, and Arizona laws.
Bartlet Brebner, of The Brebner Law Firm, noted that “First Amendment is such a moving and shifting area of law – new court decisions alter the lay of the land, the jury instructions – that nuances come along and change what can be done all the time.”

Bart also had a very interesting point on the value of blogs – it’s America’s equivalent of the Hyde Park speaker’s corner.
Why should we care about this in public relations? To protect myself a little bit, I did add that the blog is "my opinions and views" - that it's my views and opinions. But, as McCraw noted, that's not enough protection against libel. Simple labeling that something is an opinion does not make it so - the writer has to use "opiniony" words so that it is easily identifiable as not fact, less factual, while showing the basis of the opinion.

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