Reminder: Defamation Still Applies To Bloggers

from the in-case-you-thought-otherwise dept

Mon, Sep 29th 2008 1:31am — Mike Masnick

There's this odd belief among some bloggers that defamation and libel laws don't actually apply to bloggers. Nothing could be further from the truth, however. Some of the confusion may stem from court rulings about comment liability, suggesting that a blogger is not liable for defamatory statements made by others in their comments. Unfortunately, many have taken this to mean that there is no liability for blogging defamatory statements. Others believe that since it's their personal blog, they can say what they want and there shouldn't be any liability, because it's not like a newspaper. While I tend to think the entire concept of defamation laws should be rethought in an era when everyone is a publisher, that doesn't change the fact that they do exist and they do apply to bloggers. At least, that's what one set of bloggers is finding out after a court refused to dismiss a defamation suit against them, when the bloggers insisted their statements weren't defamatory because they were just their opinions. But the claim was pretty seriously undermined by the fact that many of the potentially defamatory statements weren't just made as statements of fact, but were posted on a blog that exclaimed across the site: "OUR STORIES ARE TRUE." Oops.

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Filed Under: bloggers, blogs, defamation, libel

13 Comments

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Mr Big Content, 29 Sep 2008 @ 2:27am

It's A 2.0 World
Reality has been 2.0'd to keep up with Web 2.0. Somebody just needs to 2.0 the law as well.
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some old guy, 29 Sep 2008 @ 3:46am

Re: It's A 2.0 World
Reality has been 2.0'd to keep up with Web 2.0. Somebody just needs to 2.0 the law as well.

Huh? Reality has been over-marketed to keep up with web over-marketing. Somebody just needs to over-market the law as well?

How exactly is the justice system's fictitious marketing department going to help here?
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Roger, 29 Sep 2008 @ 5:10am

Legal ignorance
Our educational system fails to teach people how to survive in a litigious society. Even if defamation laws were rewritten to accommodate social media (what about what people say about each other on Facebook?) most people would remain ignorant of obvious legal pitfalls, let alone the nuances.

The Media Bloggers Association recently introduced a requirement that, in order to join, its members pass an online legal course. Certainly, anyone who is blogging professionally ought to familiarize themselves with the legal basics.
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jonnyq, 29 Sep 2008 @ 6:11am

Re: Re: It's A 2.0 World
At the risk of a wasted response...

Web 2.0 is, in part, a reference to the low barrier of entry to blogging, and other sites creating models around user-generated content. As opposed to a world where information doesn't flow very well upstream, information now flows in all directions fairly equally - I get your personal opinion just as easily as I get CNN's opinion. The law needs to take that into account when regulating communication (i.e. libel laws)
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Jim Gaudet (profile), 29 Sep 2008 @ 7:17am

What happened to free speech?
Honestly, because now I reach more people when I talk or type, it is a problem. If I were only allowing people to listen to me in a small forum there would be no problem.

Say what you want to say, just don't say something like;

(put persons name here) killed (put other persons name here) without proof. That's wrong, but you should be able to state an opinion like,

If She/He killed them, then She/He is a dirty f uc king pig.

~ Jim
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Ortzinator, 29 Sep 2008 @ 7:46am

Re: What happened to free speech?
Something happened to it? There have been libel laws for decades. People are just more bitchy about it nowadays.
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shanoboy (profile), 29 Sep 2008 @ 8:09am

serious question
I wrote a blog post once about a friend of my wife's that was pretty insulting. The story didn't name her by name and it was totally factual and largely un-embellished, but of course if she ever read the post she would know it was her.

So, is that grounds for libel? Seems like there's a fine line there.
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ehrichweiss, 29 Sep 2008 @ 8:36am

Re: serious question
If you don't name names, and you don't go out of your way to describe who she is, then you should be mostly fine. I mean, if all you do is describe a bunch of things she said/did and didn't go out of your way to let people know who she is, then she has no grounds. That might not stop her from filing if she read it but you could get it dismissed by the first court appearance. Of course if she went that far, you'd probably want to countersue for your attorney fees just to shut her up in the future. And I'd watch out for her to try to post a blog entry that is aimed at you as well.
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Anon2, 29 Sep 2008 @ 10:01am

Defamation still harmful
I see no reason to exclude from the centuries-old tort of defamation those who publish their comments on the internet, whether in blog form or otherwise. The law already excludes a blogger from liability for what others say in the comments section on his or her blog, which is a correct outcome under the circumstances and is clearly a good example of old laws accommodating and striking balances with new technologies. But why should anyone who actually defames another be let off the hook merely because it is easier to publish one's statements via this medium? By definition, a libelous statement is one that has damaged someone else's reputation through publication of false factual assertions. I simply see no justification for carving out a broader exemption of blogs in general; that seems to me to be going much too far. The law is intended to impose some level of discipline on people who publish statements about others, and to me that's a good thing and easy enough for a blogger to take into account even in the context of rapidly developing events.

Oh, and ehrichweiss, I am assuming you are not a lawyer, since the advice you are giving is not very good advice. Though not typical, there have been successful libel suits where even though the person's name was not used, the publication was directed toward an audience who clearly understood, based on the statements made, exactly who the author was talking about. Moreover, the American rule in litigation does not generally allow you to "countersue for . . . attorney fees." If a lawsuit is entirely frivolous, one can petition the court to award attorney fees as a sanction, but it would have to be so clearly lacking in any merit as to leave no doubt that the person who brought the suit did so in utter bad faith. Although I'm dubious of a suit like the one shanoboy describes, I seriously doubt it would meet that standard.
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Hulser, 29 Sep 2008 @ 11:12am

Re: Defamation still harmful
But why should anyone who actually defames another be let off the hook merely because it is easier to publish one's statements via this medium?

I simply see no justification for carving out a broader exemption of blogs in general; that seems to me to be going much too far.

To me, it looks like you're jumping to conclusions about what Mike actually said. He didn't say that bloggers should be "let off the hook" or given an "exception" in the way you describe. Here's what he actually said...

"While I tend to think the entire concept of defamation laws should be rethought in an era when everyone is a publisher"

Rethinking something doesn't automatically translate into granting carte blanche. Maybe Mike just meant to clarify the law to take into account the relatively new phenomenon of the blog.
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Anonymous Coward, 29 Sep 2008 @ 11:43am

I have an idea - avoid a libel suit altogether by recording your thoughts in an mp3 and making that available. Then you circumvent the libel laws and jump right to slander.
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Lawrence D'Oliveiro, 30 Sep 2008 @ 1:00am

Re: It's A 2.0 World
What does it take to get recognized as parody these days? Did the use of "2.0" as a verb really not set off anybody's bullshit-o-meter?
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Michael Roberts (Rexxfield), 1 May 2009 @ 9:03pm

MP3 defamation is still libel, not slander
Anonymous Coward, your comment was obviously tongue in cheek and quite funny. Notwithstanding, an MP3 recording of defamatory statements would still be considered libel. Slander is a form of defamation that is relatively fleeting, such as the spoken word or a radio transmission. Defamation in a more durable format is called libel, examples would be written words, Internet postings, digital media such as CDs and DVDs.
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