Bloggers - Legal aspects

Using blogs as a communication medium may raise legal concerns for librarians

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Introduction

see also Blogs and Liability of health librarians

"Post-Internet 2.0 free speech is most commonly represented by the blog, websites devoted almost solely to giving voice to a person's thoughts and beliefs using the Internet as the medium of free exchange"

The main legal concerns for bloggers arise from discussions with others on the blogosphere. Since the 1990s, the emergence of blogging has brought with it a range of legal concerns such as journalistic privilege, election laws, defamation and licensing laws, media ownership restrictions, copyright and vicarious liability.

• Most bloggers believe that they are protected by freedom of expression and free speech laws. However, the right to free speech is not absolute particularly when discussing issues that may be injurious to someone's reputation. Generally, defamatory statements are a big legal problem we face within web 2.0 environments. According to Mercado-Kierkegaard, a second major problem arises when bloggers reveal confidential or proprietary information about organizations. Some bloggers have been fired for violating company policies.

• False and/or disparaging comments made about individuals or organizations are considered defamatory. If comments made on a blog cause injury to someone's reputation (or emotional distress), a statement of claim can be filed in most jurisdictions. Generally, a quick retraction or removal of the post will result in a case being dropped. Many bloggers feel a sense of freedom in expressing ideas and more openness than might otherwise be the case. Defaming is an act exposing people and organizations to ridicule (and is more harmful than a joke, satire or exaggeration). The watchword here is to be very careful when blogging about these matters, and to be mindful of the issues raised by the Health Care Blogger Code of Ethics.

• Using qualified language (such as "may") may reduce a blogger's liability. If false statements are posted at your blog, prompt correction may help to reduce legal culpability. However, can bloggers be held liable for defamatory statements posted by unknown parties? One influential court case looking at the issue has said no. In Barrett v. Rosenthal, the Supreme Court of California ruled that "plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source" i.e., the third party who posted the statement.)
• Defenses to a defamation claim include the "fair reports privilege". Was the statement an opinion or rhetorical hyperbole? Truth is a defense and sufficient if "substantial truth" or gist is accurate. The fair reports privilege protects fair and accurate reportage. Official sources must be identified, and reports should reflect the accuracy of facts in the case.
• It used to be that "opinions" were protected from libelous claims but this is no longer true. Calling a blogpost your opinion does not make it so, and phrases such as "I think" or "I believe" do not protect you from libel. Statements are actionable if they imply false assertions. Some statements may be protected if expressed as opinions and cannot be proven.

Liability and ‘social media talk’

...Internet defamation is becoming more common due to the increasing ability of internet users to post comments online. Blogs, message boards, instant messaging services, and social media sites, such as Facebook and Twitter, all allow every day internet users to publish their views on a variety of people and subjects. As a result, internet defamation commonly occurs from defamatory material being posted on various message boards or websites ..."'

• The law of defamation has developed historically to safeguard reputations. Defamation is an act exposing others to ridicule and is more harmful than a joke, exaggeration or satire. In legal terms, a false or disparaging comment about someone is considered defamatory. Innuendo can also be ruled by courts as defamatory. If what you are writing in a social media space (be it yours or someone else’s) causes any emotional distress or injury to someone’s dignity or reputation, a statement of claim can be filed against you. In most jurisdictions, a civil case can be easily resolved (or mitigated) if you publish an honest retraction and apologize to the affected individual. A good rule of thumb for anyone who wants to air their personal or professional grievances on the web is to reflect on the potential outcomes before they go public. If you behave civilly, you will make friends, build a helpful network of contacts and your activities you will never get you into trouble. Another caveat is to remember that what you say on the web is stored forever. As a result, choosing your words carefully when posting comments on blogs is as important as the principle of doing no harm (“primum non nocere = first, do no harm”) is in health care.

• In Canada, defamation is a tort (a civil wrong) and “consists of any written, printed or spoken words or acts which lower a person in the estimation of others or cause a person to be shunned or avoided or exposed to hatred, contempt or ridicule”. The law also stipulates that defamation consists of falsely and maliciously publishing defamatory statements about someone else. The legal origins of defamation connect it to slander (harmful statements, usually speech), each of which has a remedy. Defamation is the term used most often but the fundamental difference between the two is the form in which defamation occurs. If spoken or made as gestures (or sign language), then the civil wrong is seen as slander.

• In social media, if a statement is defamatory, it is considered libelous. It’s important to remember that defamation may occur as a result of using tools such as Facebook and Twitter. Defamatory remarks made on video and audio sites are also grounds for civil action. Using qualified language (such as "may") may help to reduce your liability. A quick correction may also mitigate culpability. But users are liable for defamatory statements left on social media sites even when they are posted anonymously by third parties. A recent American case, Barrett v. Rosenthal, examined this issue but ruled against the plaintiffs. The judge wrote that "the plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source [of the defamation]" – in other words, the third party who posted the statement.

• Defenses to defamation include what is known as "fair reports privilege". Was the statement a well-informed opinion or used as a rhetorical device? The truth can be used as a defense in court, and may be sufficient when revealing "substantial truths". Fair reports privilege is important for those who engage in fair and accurate reporting (such as journalists). Official sources must be cited and reports should reflect a close scrutiny of facts. Historically, "opinions" shared in public about someone are protected from libel but this is no longer true. Calling a comment your opinion does not protect you. Even phrases such as "I think" or "I believe" do not protect you. These are actionable if they imply something factually untrue.