Blogging and the law

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Blogging is an acquired skill ...be wary of communicating contentious or private information via blogs
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Contents

Last Update

  • Updated.jpg 3 Sept 2013

Introduction

See also Blogs | Bioethics | Copyright | Ethics and the health librarian | The ethics of blogging for public librarians | Liability and the health librarian | Social media policies

"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..." — Tham, 2010

Put simply, the main legal concern for bloggers is discussing contentious issues with others on the blogosphere. Disagreements can escalate and get out of control online; before you know it, people forget their manners and civility. Speaking out against your adversaries on a blog (or using it as a soapbox) is clearly not advised. The nature of social media (i.e., where different people socialize and discuss issues) makes worry-free usage a constant challenge. Physicians and other health professionals are advised to view any posts they make on social media websites as potentially actionable. In other words, don't put anything into writing that can later be used to file an action against you. Take the approach to using social media in the same way you approach patient care i.e., do no harm; do not act with nonmaleficence and do so with the utmost confidentiality.

Since the 1990s, the emergence of blogs has brought with them all sorts of legal concerns around copyright, libel, slander, invasion of privacy, media ownership, election laws, licensing and vicarious liability (when employers are held liable for actions of their employees). Defamation is especially worrying. To defame another is to "diminish the esteem, respect, goodwill or confidence in someone". Many organizations are developing social media policies to provide a framework for their employees who engage in social media. That said, it is advisable for all users of Facebook, Twitter and, more recently, Pinterest to read up on what the law says vis a vis the use of social media. Every profession should also provide some clear advice to their members about how to use social media responsibly and ethically, and outline the limits of free speech in the United States, Canada and elsewhere in the world. In actual lawsuits where libel is alleged, the plaintiff must prove libel. In other words, prove that a) the statement is not only inaccurate but false b) that the statement has caused the plaintiff harm and be able to show how and c) that the statement was made recklessly with respect to facts and the truth. Reckless disregard for the truth is difficult to prove as is malicious intent.

For health librarians who want more information, please consult the files on Ethics and the health librarian and Liability and the health librarian.

SLAPP lawsuits & blogs

  • According to Wikipedia, the acronym SLAPP stands for strategic lawsuit against public participation. Such a lawsuit is meant to silence critics, censor commentary and intimidate critics by burdening them with the costs of legal defense until they abandon or revoke their criticism. There has been a rise in SLAPP lawsuits directed at bloggers recently.
  • SLAPP was coined by George Pring and Penelope Canan at the University of Denver because of what they contended was a steep rise in lawsuits filed to silence public participation in government decision-making. SLAPP lawsuits have been described as "civil complaints or counterclaims (against individuals or organizations) in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the American Constitution."
  • The issue of SLAPPs emerged in Canada a short period after they were first recognized in the United States. However, it was not until 1999 that the phenomenon was explicitly recognized by the Canadian courts. As of 2013, only the province of Québec has any anti-SLAPP legislation in place.
  • Because of the ease and speed of blogging, and the viral nature of the messages conveyed on blogs, there has been a sharp rise in SLAPP lawsuits against bloggers. There have been cases in the United States involving Facebook, Twitter, Yelp and other sites where users complain about their landlords, former employers or the care they had from their chiropractor. The most sensible approach for defendants charged with slander, libel or defamation, according to lawyers, is to remove their offending comments on social media sites in lieu of pursuing any lawsuit.

Freedom of speech is never absolute

  • Bloggers should never engage in personal attacks or allow comments on their blogs that attack, slander or defame another person. This is also true of other social media sites including Facebook and Twitter. Debate and discussion is one of the main purposes of using social media but be cautious. While someone's ideas can and should be criticized, the overall purpose of using social media is to share information and have a discussion of ideas in a civil way, not to confront those who hold views different from your own.
  • Most social media users believe they are protected by freedom of expression and free speech laws. However, the right to free speech is not an absolute right particularly when discussing issues that may be injurious to someone's reputation. 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.
  • Defamation is defined in the Merriam Webster Dictionary as "Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person."
  • False and/or disparaging comments made about individuals or organizations in social spaces 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). Be careful when blogging about these matters and mindful of the issues raised by the Health Care Blogger Code of Ethics.
  • Use qualified language (such as "may") to reduce your liability. If false statements are posted on your blog, a prompt correction may help to reduce liability. 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 protect anyone nor do phrases such as "I think" or "I believe". Any statement is actionable if it implies something false. 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 inappropriate use of blogs include a range of contentious legal issues such as defamation, cyber-bullying, confidentiality breaches, privacy invasion, discrimination and loss of employment for blogging (even though it may have been done on the employee's free time). Defamation laws have developed historically to safeguard individual and corporate reputations. Defamation is an act that exposes others to ridicule and must be more harmful than a joke, exaggeration or satire. In legal terms, a false or disparaging comment made about someone is considered defamatory. Innuendo can also be ruled by courts as defamatory. If what you are writing on social media websites (be it on your blog or someone else’s) causes emotional distress or injury to another person'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 wanting to air personal or professional grievances is to reflect on the potential outcome before you 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.
  • 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.

A blogger's duty of care

Some reminders to bloggers:

  • Bloggers should never engage in personal ad hominem attacks or allow comments on their blogs to attack, slander or defame another person. This principle extends to other social media spaces such as Facebook and Twitter. It may be satisfying to use intemperate language against an adversary but you are advised not to put it in writing.
  • Exercise caution in your blogging. Watch for your tone in use of words, and in their order. Cut out adjectives.
  • Be interesting, scholarly, provocative (if you must) but don't be rude or offensive, ever. (No one wants to be known as the Jerry Springer of blogging.)
  • Stick to issues and facts, always. Avoid emotional or charged language.
  • If you cannot verify something, remove it. This is sensible and protects you from libel and slander cases.
  • Know what you are writing about. Resist temptation to use heated phrases, language and hyperbole.
  • Think about using a disclaimer but remember disclaimers do not protect you if you do not exercise a duty of care.
  • Get to know a good editor. Trust them to edit your work.
  • You can even hire an editor (if need be). The process of a hard-nosed editor editing your blogposts will make you a better blogger.
  • Most importantly, ask yourself, "If my mother were to see this, would she be proud of me?". If not, time to edit again.

Disclaimers

Some lawyers suggest that bloggers place some kind of disclaimer on their blogs to make it clear that they are expressing their opinions only. In other words, it might be useful to make a statement either in your byline or on the about page on the blog that your blog represents your opinions and not those of your employer. Something along the lines of: This is my personal blog. The views expressed on these pages are mine alone, not those of my employer. Here are some other creative disclaimers on blogs:

  • "This is a blog, a fact that means little. A blog is not a peer-reviewed journal, a final archive of my ideas, a sponsored publication or a product of close editorial control. That does mean something. What is means is that while my ideas and thoughts are vital and the product of a long gestation, the writing itself may not be. Generally, my words spring from the keyboard as spontaneous bursts, unproofed, unrevised and corrected afterwards only as necessary to address mistakes that grossly affect my intent. Where such changes have been made they are explicitly noted. The blog is meant to be used as a space for conversation and debate only. If you disagree with me, say so but refrain from attacking the messenger."
  • "If you are deeply offended by anything that is said on this blog - be it from my pen, or in my quoting others - please send me an e-mail to have the post removed or edited. I would rather settle the matter privately and civilly than endure a public flogging. Moreover, if you can provide evidence to the contrary please send it to refute any claims made here."
  • "We shall not be held responsible and/or liable for anything we say. Anyone reading our blog agrees not to hold us libel for what we say or display. The content on the blog is the opinion of the bloggers/”we” and is not intended to malign any religion, ethnic group, club, organization, company, profession, corporation, individual, or other entity(s) or anyone or anything."

Even if you go to the effort of crafting a disclaimer, you are not indemnified from someone taking legal action against you for making statements on your blog. By using such phrases as "it is my opinion that" or "I believe (though I can't be sure)" won't protect you either if what you say is libelous and can be proven as harmful to another person's reputation or business.

Key websites & video

Marquette law.jpg



PEN Canada National Affairs Chair, Philip Slayton, discusses Canadian libel laws and libel chill with Brian MacLeod Rogers, a media lawyer lawyer specializing in libel, privacy, and copyright.

References

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