Monday, August 29, 2005

In Discussing Regulation: Bloggers Naïve About the Law?

One of the more interesting "threads" at the bloggers’ summit on Saturday was the discussion about whether bloggers or blogging should be regulated. Interesting, perhaps, because some (many?) in the audience appear not to know that the activities of some Virginia bloggers already are subject to some regulation and that blogging comes with some exposure to legal liability, i.e., lawsuits seeking damages for things said in the blogosphere.

To paraphrase, where bloggers stand on regulation (even self-regulation) depends on where they sit. It is clear that some bloggers see themselves as publishers of political commentary, their own and others; some see themselves as pamphleteers; some see themselves as journalists (gathering and reporting "news"); some see themselves as entertainers; some admitted being paid political flaks, electioneering for pay on behalf of a candidate or cause; and some see themselves simply as citizen activists on their soap boxes in an electronic town square.

Bloggers who see themselves as publishers, particularly those seeking to make a business out of blogging, were most likely to support the development of a voluntary code of conduct, statement of blogging ethics or other disclosure policy designed to enhance their "credibility with readers" and, one would guess, paid sponsors.

Among the more strident voices decrying any regulation (external or internal) were those who spoke of themselves simply as "citizens speaking freely" or "engaged citizens simply communicating through a new medium."

This latter group of self-described libertarians and freedom fighters appeared to be operating under the false belief that, unless something happened to change the status quo, blogging is currently free from legal constraint, protected, in their view, by an absolute guarantee offered under the First Amendment to the US Constitution. This is simply not true.

The First Amendment is not absolute. It does not protect anyone’s speech from an adverse private action, and, despite its terms ("the government shall make no law"); it only protects public speech from government regulation that cannot be justified as serving a significant government interest.

Every person who writes or speaks publicly (and the Internet is certainly public) is subject to reasonable time, place and manner restrictions on his or her speech. You can stand up on a soap box and say what you will but you can’t do it on private property without permission and, on public property, the government can ask you to get a permit, tell you where you can put the soap box, prescribe how long you can stand on it, and regulate whether you can use a bull horn.

Freedom of speech also does not authorize public speech that defames a person or a corporation. A statement is defamatory if it is false and causes the person harm. Whether blogger or MSM reporter (or public park soapbox orator), you expose yourself to legal liability if, while speaking or writing publicly, you defame (slander or libel) someone.

Moreover, if you repeat someone else’s defamatory comments in your speech, pamphlet or blog, or you allow someone to write libel in a guest column in your publication or post a libelous comment on your blog, you are legally responsible for republishing the libel and might be held accountable, e.g., forced to pay for actual damages to business or reputation caused by the libel.

Republication is an area in which there is special federal protection for Internet publications. Congress enacted Section 230 of the Communications Decency Act which protects internet intermediaries from being held accountable for the acts of others. But, at least one court has held that this law does not apply to state defamation claims.

In any case, there are three key things to remember about defamation: truth is always a defense to a defamation claim, it may be a defense that the statement is an opinion rather than a statement of fact, and the standard of liability for defaming (libeling or slandering) a public official is higher than it would be if the object of the libel is a private person.

You can’t be held accountable for defaming a public figure unless you acted with actual malice, i.e., you knew in advance that what you published was actually false or you published it in reckless disregard of the truth.

Who’s a public figure? Any elected official, any person who is well-known in a particular area or who is in the media frequently, and possibly a private person who seeks media attention for a specific purpose in order to influence the public.

So, bloggers take note. On defamation, a bit of self-regulation may be necessary to self-preservation.

Best to watch one’s own p’s and q’s. And, when you see that nasty little rumor that some anonymous poster has added to the comment section of your blog, keep in mind that the comment could put you in the bullseye of a lawsuit (particularly where the identity of the actual defamer is unknown) even if the rumor involves a public official. If you know that the rumor is false or could easily determine that it’s false and you leave the comment up there anyway, you’re a sitting duck. And, if the comment is simply a false statement about a fellow blogger or a commenter rather than a public figure … then you could be held responsible for any damages that can be linked to the fact that you published it. Even if you win the suit, because the federal law does apply, the cost of defending it could be devastating.

More tomorrow …. Electioneering as a regulated form of free speech.

This blog entry is not intended to be nor should it be read as legal advice. It is provided for education only. Any person with a question about the law of defamation should consult with an attorney licensed to practice in the jurisdiction in which he or she lives or does business.

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