What You Should Know About Defamation If You Blog

There are over 30 million blogs on the internet right now, with thousands more being added every week. Assuming each person owns one blog, that’s a minimum of 30 million people spouting their personal views on everything under the sun. This is a positive development. The free flow of ideas and thoughts keeps the world from becoming a stagnant pool of dictatorship with the appropriate green scum floating on top.

‘With great power comes great responsibility,’ to borrow a line from the movie Spiderman. Blogging has evolved into a platform for people’s voices to be heard. However, we must be cautious not to abuse our power by engaging in irresponsible behaviour that undermines the credibility of bloggers and blogging. When good posts go bad, it continues to be an Achilles heel for us.

Libel and slander are the two types of defamation in the United States. The only difference between libel and slander is that libel is a false written statement about a person, place, or thing that harms his/her/its reputation, whereas slander is the verbal act of the same offence in many states. The common denominator is that what is said is false, whether it is blogged on the internet or whispered to your mother in private.

I already know what you’re thinking because I’m psychic. ‘I am protected by the US Constitution’s First Amendment. I can say whatever I want as long as it is true.’ In a way, yes. As absurd as it may seem, the truth isn’t always the best defence in libel or slander cases. A judge may demand that the information relayed is in the public interest to know, in addition to being true.

So, while reporting that a major corporation’s CEO was caught stealing money from its employees’ retirement fund would almost certainly be dismissed in civil court, telling the world that your neighbour has stinky feet could land you in more trouble than you want. Even if it were true, why would knowing that your neighbor’s feet could clear Yankee Stadium be in the public interest?

Your right to an opinion is now protected by the First Amendment. If you believe the Mr. Squiggly Toddler Toy is a waste of money, you are free to tell anyone within earshot, as long as you make it clear that it is your personal opinion. Similarly, if someone expresses a negative opinion about their experience with you and it is obvious to any reasonable person that it is their opinion, your legal recourse against them is severely hampered.

Also protected are parody and satire. Saturday Night Live and South Park would not have made it past the first episode if they weren’t. The Fair Criticism and Comment clause also protects criticism of a public performance, such as a symphony, a play, or even a book.

The internet has now added some interesting layers of complexity to the whole blogging thing. Libel has the potential to cross international borders rather than being contained within a localised area, and not every country handles these cases in the same way. The issue of jurisdiction is one of the most pressing issues confronting courts around the world. If I live in the United States and slander someone in the United Kingdom, where does the case take place and what laws do we follow? Several cases have set a troubling precedent, implying that libel published on the internet can be sued anywhere in the world.

There’s also the issue of third-party liability to consider. Assume you’re a responsible blogger who edits her posts carefully to avoid a libel lawsuit. On your blog, one of your readers makes a defamatory statement. Is it possible for you to be held liable for that person’s actions? So far, the law has only protected internet service providers by stating that they are not liable for how their customers use their services (as it pertains to defamation). Similarly, blog service providers like Google and Six Apart would almost certainly be immune from any legal action stemming from a user’s use of the service.

It may come down to whether or not you moderate your comments to determine whether or not you will be held liable. You may be protected under Section 230 of the US Code if you allow comments to be posted automatically (for US Citizens). If you approve comments before posting them, it might be a different storey. It could be argued that by posting the comments, you are implying that you agree with them. To date, no one has appeared in court to argue this, so we’re kind of forced to make it up as we go along.

Defamation is a tricky issue that must be handled with care if you don’t want to end up in court. Here are some pointers to help you stay out of trouble. Please keep in mind that I am not an attorney. I’m not even given the opportunity to play one on television. If you or your blog deal with contentious issues, or if you’re unsure how much trouble you’d get into if you published that post about your best friend’s boyfriend, I recommend consulting a lawyer for the best advice.

1. Rename the characters. The simplest thing you can do is to change or avoid using the name of the person you’re speaking about, as well as to remove as much identifying information as possible. You might want to do some editing if a reasonable person visiting your hometown can quickly identify the “mealy-mouth cow” you blogged about online.

2. Include a disclaimer. On his website, Kevin S Brady has a great one. In the event of a lawsuit, even something as simple as “By using this blog site, you agree that the opinions expressed are the property and responsibility of their respective owners” may provide some defence. (Please consult a real lawyer.)

3. Consider writing a parody or satire of your rant. Extreme exaggerations that no reasonable person would believe are not considered defamation because they are, to put it bluntly, unbelievable. But be careful: this style of writing requires a certain je ne sais quoi, and it can easily backfire. Make sure your entry passes the believability test by having it proofread by a reasonable person.

4. Be aware of your language. Make sure to use language that makes it clear that you are expressing your thoughts on the subject. “That Mr. Squiggly Toddler Toy is a piece of crap,” for example, makes it appear as if you’re stating a fact when, in reality, you’re making a personal judgement about the toy. It’s safe to say things like “I think Mr. Squiggly Toddler Toy is a piece of crap” or “That Mr. Squiggly Toddler Toy fell apart after the first use.” That is, at least in terms of the law.

5. Finally, but certainly not least, don’t tell lies. While this may appear to be common sense, how common is common sense nowadays? Really. If you feel compelled to lie about someone, you should seek professional assistance in determining why you want to do so. Because it’s unlikely that it’s to protect the general public.

Blogging is a fantastic way to meet new people and stay up to date on current events, and doing so responsibly will only enhance the experience. Keep yourself safe, sane, and most importantly, have fun.

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