Libel: Blogging Rights and Wrongs

Updated July 6, 2009

Legal Rights and Responsibilities

While freedom of speech is our right, it’s essential that we recognize that with rights come responsibilities. Our freedom of speech is limited by the law in accord with the responsibilities that we have towards one another as determined by American case law and as required by American legislation.

Both the common law and legislation protect every person from harm to their reputation arising from false and derogatory remarks being made about their person (defamation). And, both slander (verbal form) and libel (printed form) are included in the definition of defamation.

Pseudonyms offer no safety

Bloggers please be aware that writing on your own blog, on any other blog and on any online forum (or anywhere else) under a pseudonym does not offer you or the web site administrator any protection from a lawsuit for libel.

Example 1: Blog Catalog

Blog Catalog is an American corporation and all of their members, regardless of their country of residence, are subject to American law when it comes to posting anywhere on the site in threads in  groups, in messages in  shoutboxes, and in the General Discussion forum and Political Issues forum threads.

I think it’s important for all of us BC members to be aware of what constitutes trolling and harassment, as well as, what the community guidelines for forum posting and the BC Terms of Service state.

My reasoning is that if members of any online community ignore or condone the forum behavior of individual bad actors or cliques when it is in breach of community guidelines for forum posting and Terms of Service, it will slowly become acceptable, and more commonplace, simply because it’s being tolerated.

Also, if Moderators are not made aware of the breaches of guidelines and the TOS by members reporting them, and if they are not willing to act swiftly to put an end to them, then the individual bad actors or cliques can create ill will that will have a lasting negative affect in the online community.

References:

Communities Online trolling and Harassment

Blog Catalog Terms of Service (See: 8 Content/Activity Prohibited “harasses or advocates harassment of another person;”)

Example 2: WordPress.com

Automattic Inc. is an American corporation and all of those blogging at wordpress.com, regardless of their country of residence, are subject to American law when it comes to posting to our own blogs and others, commenting on our own blogs and others, and posting questions and answers to the wordpress.com forum and/or to the wordpress.org forum.

See: 2. Responsibility of Contributors

5. Responsibility of Website Visitors

Defamation, liability: WordPress.com is an internet service provider. We are based in the US, as are all of our servers. As such we are covered by section 230(c) of the US Communications Decency Act which states that internet service providers are not held liable for content (such as allegedly defamatory, offensive, inaccurate, or harassing content) that is posted on the sites they host for their users. We host millions of web sites for our users and are not able to control or police the hundreds of thousands of blog posts our users create every day. However, if you have a complaint about one of our blogs, please follow our complaints procedure.

Libel

Although evidence of repetition to others is required to prove slander, such proof is not required in libel, the damage is presumed as it is published: thus, ‘whatever a man publishes, he publishes at his peril’.

While it’s true that we are all entitled to make ‘fair comment on any issue of public interest’, the legal rule of thumb is:  ‘fair comment’ must reflect an honestly held opinion based upon proven fact and must not be motivated by malice’.

Accordingly, any author may only go as far as to presume and publish motives on the part of a person whose actions he or she is criticizing, provided that the motives presumed are based on proven fact and are reasonable, given the circumstances and that the issue is an issue of public interest.

Reach for your wallet

Freedom, truth and justice are there for those who live up to their responsibilities.

If you are  sued for defamation, it can cost you a lot of money and years of your life to prove you were not guilty. Even if you are successful, the lion’s share of any legal award you may get from the court will go to pay for the legal expenses required to defend yourself in court. So be smart.

Some take it or leave it advice for bloggers

  • Speak in the first person singular whenever possible. State “It’s my opinion that” or “I believe that” or “Correct me if I’m wrong but I think” and always take the cautious polite approach when complaining about anyone or anything.
  • Do not comment at all on issues that are of a personal nature. Limit your commentary to only issues of public interest.
  • If you are angered or hurt by what another blogger has posted then wait for a full 48 hours before you post. Then, prior to posting your reply, write a draft and check your wording out at least three times to be sure there is no malicious intent (determination to hurt another person) contained in it.
  • Never ever state that something is fact unless you can absolutely prove it to be true, far beyond any reasonable shadow of doubt.
  • Never ever rely on hearsay. If you weren’t there and you did not see or hear what happened then don’t put your own neck (and the site administrator’s neck) out on the chopping block.

Some take it or leave it forum advice for TPTB

  • Hire the staff needed to moderate the people using your software.
  • Develop clearly-stated forum rules, including a zero tolerance policy for personal attacks.
  • Follow through by banning and blocking members who disobey the rules.

References:

US Constitution and its First Amendment

NY Times vs. Sullivan

Bloggers Beware: You’re About to Commit Libel

The Electronic Frontier Foundation (EFF) is an organization dedicated to protecting freedom of speech on the Internet.

100 Essential Legal and Privacy Guides for Bloggers

A list of FAQ & A’s about defamation maintained by the legal departments of Harvard, Berkeley, Stanford, University of San Francisco among others.

The Open Net Initiative (ONI) is a collaboration between the Citizen Lab at the Munk Centre for International Studies, University of Toronto, Berkman Center for Internet & Society at Harvard Law School, the Advanced Network Research Group at the Cambridge Security Programme, University of Cambridge, and the Oxford Internet Institute, at Oxford University which aims to investigate, expose, and analyze Internet filtering and surveillance practices in a credible and non-partisan fashion.

Thanks for reading this blog post. I hope you found the information useful. I apologize for the preachy tone.