On Aug. 26, Dave Taylor posted an article concerning legal liability and weblog comments. Basically, Aaron Wall, who writes the SEO Book weblog, was recently threatened with a lawsuit because of something that someone posted in comments to his blog.
In a nutshell, SEO company Traffic-Power.com has filed suit against Wall, claiming that comments posted on Wall’s blog revealed some of their “trade secrets.” However, Traffic-Power.com waited a long time after the comments were posted to take legal action so I’ve got to wonder whether they’re really concerned at protecting proprietary information. Perhaps they’re simply trying to silence their critics through intimidation.
Sigh… it had to happen sometime… I suggest that you first read Dave’s article and don’t miss the comments, especially the one from attorney and former judge Daniel Perry.
Here’s what I think bloggers should know about the issue of legal liability…
SLAPP SUITS AND LIBEL: SOME LEGAL CONTEXT
I’ve covered environmental issues for several years, and in the environmental realm there’s a very similar phenomenon called a SLAPP suit (strategic lawsuit against public participation). The legal definition of a SLAPP, according to Nolo Press, is when:
“…a corporation or developer sues an organization in an attempt to scare it into dropping protests against a corporate initiative. SLAPP suits typically involve the environment–for example, local residents who are petitioning to change zoning laws to prevent a real estate development might be sued in a SLAPP suit for interference with the developer’s business interests. Many states have “anti-SLAPP suit” statutes that protect citizens’ rights to free speech and to petition the government.”
Wikipedia also offers an excellent overview of SLAPPs, with several examples.
Bloggers should be aware that SLAPP suits can involve libel charges. For instance, the longest-running libel trial in UK history occurred when McDonalds sued two penniless London Greenpeace activists for handing out leaflets in front of a UK McDonalds restaurant. (UK libel law requires defendents to prove themselves innocent, the reverse of US libel law.)
A British court originally ruled against the activists in 1997. However, the tables turned in Feb. 2005 when the European Court of Human Rights ruled that the original case had breached article 6 (right to a fair trial) and Article 10 (right to freedom of expression) of the European Convention on Human Rights (which, of course, does not apply in the US). That court ordered the UK government to pay the activists Â£57,000 in compensation.
…Similarly, bloggers probably cannot be considered “common carriers” (passive conduits for information), even for comments. Especially if you take any steps to moderate or edit comments. We are publishers.
…Remember the 1998 case where Sidney and Jacqueline Blumenthal claimed they were defamed by something Matt Drudge wrote, which was published by AOL? the Blumenthals sued AOL and won. In his decision on that case, Judge Paul Friedman wrote:
“Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor.”
What about revealing proprietary information, including trade secrets, in a blog posting or comment? A more recent case provides an example here: ThinkSecret publisher Nicholas Ciarellli is currently fighting a lawsuit from Apple Computer over postings to his blog which contained technical information leaked to him by Apple employees. (See this CNet article for background.)
ThinkSecret has invoked California’s anti-SLAPP statute in its motion to have the case dismissed. I’m not sure of the current status of that motion, or the case I will attempt to update that point later.
WHAT DOES THIS MEAN FOR BLOGGERS?
Here’s my understanding of the issue (and please don’t construe this as official legal advice): If you moderate or edit comments to your blog in any way you’re probably assuming legal liability for the content of those comments. I’m not sure whether this also applies to automated comment spam filtering.
This risk is definitely something every blogger should consider. Public speech and publishing do carry legal responsibilities. Also, the risks you face may vary according the the state or country where you reside. Remember: The peculiarities of UK libel law are probably why McDonalds opted to sue leafletting activists in the UK even though such protests were also happening in the US, and even though McDonalds itself is a US-based company.
HOW BLOGGERS CAN SLAPP BACK
Here’s the thing I’ve noticed about most SLAPP suits: They often get withdrawn once they are publicized. Smart executives and PR professionals generally realize that when their overzealous lawyers go to such irrational lengths to attempt to exercise draconian control over public discourse, the organization ultimately pays a huge price in terms of negative publicity and, often, in lost business. That blowback can spread widely, last for a very long time, and simply is too expensive.
I would encourage bloggers to publicize Aaron Wall’s case widely not in a scaremongering (“Allowing comments is begging to get sued into oblivion!!!”) manner, but rather to leverage our collective strength.
Face it: Bloggers are getting pretty powerful. We hold an increasingly prominent and influential role in the public discourse. The mainstream media often relies on us for leads on breaking news and upcoming trends. We can use this power for good on our own behalf, and to preserve freedom of speech.
Acting together, bloggers can bring the full weight of negative publicity to bear on organizations who would threaten us with frivolous SLAPPs. We can discuss what’s happening, and why, and explain the dangers of using the legal system to censor one’s critics.
Censorship typically only thrives when the censored are complicit in secrecy. The best thing we can do to protect all bloggers and the people who read and comment on their blogs is to speak out loudly against legal bullying.
HOW TO PROTECT YOURSELF
Well, there’s no one way to go about protecting yourself from any kind of lawsuit. But a good general first step is to consider potential legal risks associated with publishing any blog posting or comment. If you think you’re in a gray area, talk to a lawyer. Really.
I’m not saying you should be paranoid or pussyfoot around tough issues. I am saying that you can choose to do so responsibly, and within reasonable legal bounds. Get to know libel law. Also, find out whether your state or country has laws in place to discourage SLAPPs aimed at curtailing free speech.
Recommended reading: On Aug. 12, 2005, Dave Taylor offered advice on Crafting the ideal business blog comment strategy. It’s good food for thought, even for non-business bloggers. Also, on Aug. 2, 2005, PR blogger Jeremy Pepper offered his thoughts on libel issues in blogging.
Also, you can read Aaron Wall’s account of the suit lodged against him, including the letter he received from Traffic-Power.com’s attorney for now. He might remove that post at any time, so check it out now if you want to be certain to see it.)
Here on Contentious today I’ve clarified my comment policy. I’ve added the following text next to the button you press to submit a comment to this blog:
AGREEMENT: By sumitting this comment, you grant Amy Gahran permission to quote or republish this comment without restriction, notification, or compensation. Also, you acknowledge that you alone are fully responsible for (and bear full legal liability for) the content of this comment including inaccuracies or potentially libelous statements. You certify that in this comment you have disclosed no proprietary or confidential information. This agreement applies even if you choose to post anonymously or supply false or incomplete identification.
COMMENTS ARE MODERATED! Your comment will not appear immediately on this site. Rather, it will appear on Contentious only after it’s approved, which could take up to one day. Contentious moderates comments to filter out spam and off-topic, offensive, uncivil, or otherwise inappropriate posts. Contentious does not fact-check, spell-check, or otherwise verify or correct comments.
I think that’s pretty clear. As for the rights-related stuff at the beginning, who knows, I may want to publish a book someday and include in it comments posted to this blog. That’s not an unreasonable goal or expectation for me, since it’s my blog and since I’m providing a forum for my readers by allowing comments. However, if you happen to think that my expectation of rights is unreasonable, then don’t post a comment here. Simple.