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Blogging Liability Part I: Defamation

August 30, 2015

 

So, you operate a website or a blog on someone else’s website and you really enjoy it or you use it as a main source of revenue.  You are not alone.  Some estimates put the number of blogs out there at 450 million.[1]  One source claims the following statistics: small businesses with blogs generate 128% more leads than those without, that interesting website content is one of the top three reasons people follow brands on social media, that nearly 81% of consumers state they trust information and advice found on a blog (even if the blog is run by the company that it is promoting), and that 70% of consumers have made a purchase from information found on a blog.[2]  In another survey, 85% of bloggers expect revenue from their blogging.[3]  Top blogs can earn well over $100,000 PER MONTH; the Huffington Post earned over $2M per month.[4]  These websites/blogs generate money through a variety of means, including advertising banners, affiliation sales, cost per impression, pay per click, product sales, and sponsorships.[5]

 

A question I am commonly asked, is “Jeff, if I run a blog or a website, can I be sued for printing information that says something bad about someone? And does it make a difference if I wrote the article or someone else posted it in the Comments Section or in a forum I moderate?" These are all good questions.  But, first my standard disclaimer:

 

Disclaimer: The following information does NOT constitute legal advice and is only for general educational purposes.  Each situation is different and specific legal issues usually require additional research and investigation, so do not rely on this article to address a particular legal issue; use it as a starting point to gain a general understanding.

 

1.  What is Defamation, Libel or Slander?

 

Well, first off, you probably heard of the term “Slander,” right? You might think it means something like when you shout at a person, “you’re a rotten scoundrel!” but that’s not quite true.  Slander is actually just one half of a broader term called “Defamation.”  The other half is “Libel.”  Slander is Defamation made orally (i.e. shouting it out or even whispering it very quietly), whereas Libel is writing out the Defamatory statement - like passing a note in class about someone to a third person, or in an article to a major newspaper.  So what exactly is Defamation?

 

In New York, a common definition is "the making of a false statement which tends to expose the plaintiff victim to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society."[6]  In addition the statement must be “a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.”[7]

 

That’s a lot to digest so let’s break it down.  To be legally responsible for the consequences (“liable”) for Defamation, you need to (1) the publish (or say) a false statement claiming or appearing to be fact, to a third party; and (2) without authorization or privilege; and (3) be at fault, judged at a minimum by a negligence standard; and (4) cause special harm or “Defamation Per Se” (certain claims are inherently harmful, such as the person committed a crime or has a terrible disease).[8]  You need all four to be liable for Libel (say that three times fast I dare you) or Slander. 

 

So for instance, Joe hates Bob and Joe tells Bob, to Bob’s face, where no one can hear Joe, “Bob, you rotten scoundrel, you are a crook and I saw you steal the charity’s money right out of the collection box.” That is not Slander - even if Joe is lying. Seriously?? Joe can tell a lie about Bob? Well, yes (at least for the purposes of Defamation) - but only if - Joe tells it only to Bob directly and to no one else.  Why? Because a THIRD PARTY (someone who is not Bob) must see or hear the false accusation.  Also, if Bob actually stole the money, the statement is not Slander, even if someone heard it.  Why? Because truth is a defense against charges of Defamation.[9]  Or suppose, if Bob is a career criminal interested in promoting his reputation as a criminal, he could authorize Joe to say whatever Joe wants about Bob’s stealing proclivities. 

 

Finally, a person may express an opinion, no matter how pernicious, as long as it is not interpreted as a “false statement of fact.”[10]  The Supreme Court also has said that an opinion is protected as long as it is (1) something not objectively provable as true or false by objective evidence or (2) is a statement that cannot reasonably be interpreted as stating actual facts about an individual; in practice, this also means that the following is protected: loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.[11]  Be Warned: This does not mean all opinions are protected; it is a complicated test that differs between some courts; if you aren’t sure be prudent or check with an attorney first.

 

It can get a lot more intricate than this and we’ll see some examples below, but that’s the gist of it to get you started.

 

2.  Old School Liability

 

In the old days of chisels and stone tablets, or least newspapers, there were three categories of those who could be held responsible for transmitting a defamatory statement: the publisher (like your local newspaper, the “County Gazette”), the distributor (Charlie, your favorite newsstand guy) and the common carrier (the mail carrier who delivers the paper to Charlie or to you directly).[12]  Of course the author is responsible for their own statement to the publisher.  But what about the County Gazette? Or Charlie the newsstand guy for selling it? Or even the mail carrier? Well, typically, the publishing newspaper bears the same liability as the author for a defamatory statement, but the distributor is held to much lower standard (they have to know they are transporting Defamatory material), so that newsstands, bookstores, and libraries are generally not held liable for the content of the material that they distribute; and carriers are fairly much never held liable.[13]  

 

3.  Enter the Internet Age Before 1996

 

But, you don’t run a newspaper, you run a blog; let’s say you run a blog rating the performance of contractors and products and SOMEONE ELSE posts something false and negative about the contractor.  The author of the post definitely could be held liable for what they wrote.  But what about you? Are you considered a publisher, like the County Gazette or a or distributor (like Charlie the newsstand guy) or just a simple mail carrier for delivering the post?  Well, prior to 1996, that decision might differ depending on how much editorial control you exercised.  For instance in one case, Compuserve (an ancient Internet Service Provider) was not held liable for comments because it was very passive, merely providing a place for people to leave their comments in a forum, and was therefore treated liked a distributor.[14]  However, Prodigy was not so lucky, being deemed a “publisher” because it had a content-policy and active moderators that enforced it; but in truth, Prodigy did not necessarily even exert that much editorial control.[15]  This produced a catch-22 because in order to escape any liability, you, as the blog operator, could not seem to have any guidance for content or enforce any kind of editorial control at all, which meant all kinds of posts might remain on your blog, no matter how unsavory.

 

4.  1996 and the Communications Decency Act

 

However, the standards changed a bit in 1996, when Congress passed the Communications Decency Act (“CDA”), largely to regulate Internet pornographic materials, particularly with the intent of protecting children.[16]  The CDA actually was only part (Title V) of the larger 1996 Telecommunications Act,[17] which itself was the first major change to communications law in about 62 years,[18] and meant to address a number of broad issues, including some revolving around that new fangled thingy that seemed to take on a life of its own - you know, the Internet.[19]  Ironically, the CDA was largely struck down by a lawsuit from the ACLU and others, including the Electronic Freedom Frontier, who argued it was overreaching and unconstitutional.[20]  However, a crucial part of the CDA, Section 230 of Title 47 of the United States Code (47 USC § 230) did survive, and it provides to Internet Service Providers, website owners, and blog operators, the first line of defense against many sources of liability.[21]

 

So, what does it do? It says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[22]  Remember how publishers are held to the same standard for Defamation as the author? So, if Joe published something Defamatory about Bob and the County Gazette published it, the County Gazette could be just as liable for damages as Joe.  By contrast, if you run a blog, because of this federal law, someone suing you for alleged Defamation is not allowed to treat you as a publisher.[23] 

 

And, bonus! This law also may protect you against from certain other claims related to posts on your blog; claims such as infliction of emotional distress, negligent misrepresentation, interference with business expectancy, breach of contract, intentional nuisance, violations of federal civil rights, and emotional distress.[24] 

 

But everything is not all sunshine and rainbows.  The CDA does not protect you if you violate federal criminal acts, copyright infringements or electronic privacy laws.[25]  Also, if YOU are the one that wrote the article, you are the author, so you’re still liable for anything you say; in other words, posting your own article on a website doesn’t give you special protection just because it is on a website (although ironically, if someone else posted the offending article on your website as opposed to in your paper, the law does give you that special protection).  And, while you MAY edit other contributor’s posts somewhat, you can NOT edit them so much that you change their substance, or you could be held liable if that edited post is Defamatory.[26]

 

So, here are some examples.  The D.C. Circuit Court upheld AOL’s CDA immunity from Defamation, as a provider of interactive computer service (AOL was the ISP not blog operator) from a defamation lawsuit related to a potentially libelous article that the Drudge Report carried and distributed to AOL’s subscribership; AOL was more than passive - it had an actual contract with Drudge and even the right to edit Drudge entries.[27]  Said the court: “Whether wisely or not, [Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others.”[28] Similarly, a local New York State court upheld the Defamatory immunity of a blogging website where people rated products, even where the blogging site selected, revised, removed, reposted or altered third party content, the website did not create the original potentially libelous post.[29]

 

Final Thought

 

This is an exceedingly complicated field of law.  The Communications Decency Act *generally* will protect you against OTHERS posting Defamatory statements on YOUR blog.  However, it does NOT protect YOUR own Defamatory statements.  If you do edit posts for any reason, be careful that you do not change the substantive meaning of it; that can happen even if you just edit it for length: “Bob is not a liar” to “Bob is a liar” becomes potentially Defamatory by deleting the word "not," so take care! Otherwise, be creative, invite participation and enjoy your writing!

 

***

 

[1] http://www.hattrickassociates.com/2010/02/how_many_blogs_2011_web_content/

 

[2] http://fannit.com/the-take-over-and-rule-of-blog-marketing/

 

[3] http://heidicohen.com/blogging-revenue-how-does-your-blog-rank/

 

[4] http://www.incomediary.com/top-earning-blogs

 

[5] http://www.incomediary.com/top-earning-blogs

 

[6] Dillon v. City of NY, 261 A.D.2d 34, 37 (1999).

 

[7] Dillon v. City of NY, 261 A.D.2d 34, 38 (N.Y. App. Div., 1999).

 

[8] Dillon v. City of NY, 261 A.D.2d 34, 38 (N.Y. App. Div., 1999).

 

[9] Fairley v. Peekskill Star Corp., 83 A.D.2d 294 (2nd Dept. 1981).

 

[10] Gertz v. Robert Welch, Inc., 418 US 323 (1974).

 

[11] Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

 

[12] http://www.dmlp.org/legal-guide/immunity-online-publishers-under-communications-decency-act

 

[13] http://www.dmlp.org/legal-guide/immunity-online-publishers-under-communications-decency-act; Cubby, Inc. v. CompuServe Inc., 776 F.Supp 135, 141 (S.D.N.Y.1991) (distributors of information are liable for the distribution of material which they knew or should have known was of a defamatory character).

 

[14] Cubby v. Compuserve, 776 F. Supp. 135 (S.D.N.Y. 1991) (Compuserve could be liable only if it had reason to know the information was defamatory).

 

[15] Stratton Oakmont, Inc. v. Prodigy Services, Co., 1995 WL 323710 (N.Y. Sup.Ct. 1995).

 

[16] http://www.cato.org/pubs/pas/pa-262.html;http://www.cybertelecom.org/cda/cannon2.htm; http://www.ipmall.info/hosted_resources/crs/96-321.pdf

 

[17] http://www.lectlaw.com/files/stf05.htm

 

[18] https://transition.fcc.gov/telecom.html

 

[19] http://www.stern.nyu.edu/networks/telco96.html

 

[20] https://epic.org/free_speech/cda/

 

[21] https://www.eff.org/issues/bloggers/legal/liability/230

 

[22] 47 USC 230(c)(1).

 

[23] Zeran v. America Online, Inc., 958 F. Supp. 1124 (E.D. Va. 1997);

 

[24] https://www.eff.org/issues/bloggers/legal/liability/230

 

[25] 47 USC 230(e).

 

[26] Deer Consumer Prods. Inc. v. Little, 2011 NY Slip Op 51691 (N.Y. Sup. Ct. 2011) (even though the website selected, revised, removed, reposted or altered third party content, the website did not create the original potentially libelous post).

 

[27] Blumenthal v. Drudge and AOL, 992 F. Supp. 44 (D.C. Cir. 1998).

 

[28] Blumenthal v. Drudge and AOL, 992 F. Supp. 44, 49 (D.C. Cir. 1998).

 

[29] Deer Consumer Prods. Inc. v. Little, 2011 NY Slip Op 51691 (N.Y. Sup. Ct. 2011).

 

***

 

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