Can Bloggers Be Sued Over Comments? Maybe

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 £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.

…Thoughts?

12 thoughts on Can Bloggers Be Sued Over Comments? Maybe

Comments are closed.

  1. Amy:

    I like the fact your comment policy has text the same size as the rest of the page. Like yours, Dave Taylor’s notice is located immediately below the “Send It In” button. However, Dave’s note is of such small text that someone may claim they did not see it. I like the directness of Dave’s notice “… you relinquish any rights of ownership of your question and agree that I can rephrase, reword, modify, correct or repurpose your material without limitation or constraint …” I am sure that Dave elected to omit the word “republish” in concern over the use of the word “publish.” The modern trend of courts is to ignore how you describe your efforts so this is likely not a significant issue.

    I liked your explanation of future use. “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.” It is prudent to explain what your future potential uses of the information may be. I would stress that you are making a special effort to permit commenting (and track-backs) along with the administrative and editorial headaches of moderating those comments so therefore you are entitled to reuse or repurpose those comments.

    As for your heading, rather than say “AGREEMENT” I would probably use “PLEASE POST MY COMMENT” as it will likely mean someone will actually read it. Calling this an agreement will not give it any special standing in a court.

    I am uncomfortable with your language that attempts to deflect responsibility for the comment: “… 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.” The problem is that courts have historically looked right through that language. In some instances, courts have even rejected “hold harmless” language. A better approach might simply be to state that you will reject any comments which include profane, libelous, abusive, or offensive language. Moreover, you will not knowingly allow comments to be posted or remain posted which contain proprietary or confidential information, spam, off-topic, offensive, uncivil, or otherwise inappropriate posts.

    I am uncomfortable with the admonition that you do not fact-check. Frankly, there are circumstances when you should fact-check. Dave Taylor apparently does so. If you do so and post that you do not then you are being untruthful. That could boomerang on you.

    Daniel Perry

  2. Thanks, Daniel. I appreciate your thoughtful review of my first attempt to clarify my comment policy.

    I understand your discomfort with my attempt to address liability. Here’s the thing though — I do wish to address that issue directly. Regardless of how a lawyer or judge might read it, I want commenters to be aware that they � not I � are responsible for what they say. For this statement, commenters are the primary target audience.

    Given that, how would you recommend I address this?

    Regarding fact-checking: Actually, I do not fact-check comments posted to my site. Nor do I fix spelling, etc. I don’t have the time. The only exception is if I choose to follow up on something mentioned in a Contentious comment, for the purpose of creating a new posting (whether to Contentious or elsewhere). If I’m going to write about it myself, I’ll do fact-checking. However, that is part of my writing and R&D process, not part of my blogging or comment-handling process. I treat interesting facts mentioned in private e-mail or conversations, or anything heard secondhand, the same way.

    Is that something I should explain as well? Obviously I want to keep the policy statement short and clear.

    Thanks,

    – Amy Gahran
    Editor, CONTENTIOUS

  3. Why not simply say that you will hold them responsible for their comments and if you get sued over their posted comments then you will turn around and sue them. “I’ll send my lawyers after you!”

    Keeping your comments policy short is good but I liked your explanation in this response. What about a link, say, Fact-checking? to a page that explains just how you did in this response?

  4. Exios and I mentioned this story on this week’s podcast (show 11, not yet posted). Thanks for the extra information on it. I was unfamilar with the term SLAPP suit but have heard about adware and spyware companies using such tactics.

    Based on my web reading on the plantif, I would have to agree that this looks like such a tactic.

    Keep up the great writing.

  5. An anti-SLAPP counterclaim is unavailable to Aaron. Nevada has a very limited Anti-SLAPP statute. It is used to protect the right of citizens to petition for governmental relief. Unlike California’s Anti-SLAPP statute, Nevada does not extend the use of its Anti-SLAPP protection to a free speech issue.

    Amy correctly points out that SLAPP lawsuits have involved defamation issues. In the very well reasoned 2004 California case of Barrett versus Rosenthal, the California Court of Appeal reversed the trial court’s dismissal based on California’s anti-SLAPP statute. In the California Court of Appeal decision, the appellate court noted that in the Drudge Case, Federal District Judge Friedman granted a motion for summary judgment based on a total immunity argument under a federal statute, 42 United States Code Section 230. The Barrett Court noted that Judge Friedman “… gagged on the unfairness that resulted from such a broad immunity.” The appellate court rejected the trial court’s application of broad total immunity and reversed the trial court’s dismissal of the lawsuit.

    “Because [47 United States Code] section 230 does not ‘”‘speak directly’ to the question addressed by the common law”‘ … and is capable of more than one construction, we conclude that the statute should not be interpreted as having abrogated the common law principle of distributor or knowledge-based liability. Rosenthal has not alleged any fact that would prevent her from being subjected to distributor liability under the common law. Appellants allege they notified her that Bolen’s statement contained false and defamatory information and asked that the statement be removed from the newsgroups on which Rosenthal posted it, that she refused these requests and thereafter repeatedly reposted the allegedly defamatory statements on Internet newsgroups. Rosenthal’s answer denies the statements were false but admits all of the other allegations. However, her special motion to strike under the anti-SLAPP statute was not based on the truth of the statements that Polevoy engaged in criminal conduct [stalking of females] nor did it deny she knew or had reason to know of the defamatory character of these statements. The motion was based solely on the grounds of the federal immunity, appellants’ inability to show ‘”actual malice,”‘ and their failure to plead special damages. Furthermore, Rosenthal has never asserted that, due to the technology or for any other reason, she could not easily have withdrawn and/or corrected the allegedly defamatory materials she posted.”

    The appellate court concluded: “Because [47 United States Code] section 230 does not restrict distributor liability under the common law and at this preliminary stage of the litigation no reason appears why Rosenthal cannot be subjected to such liability, the trial court erred in finding that appellant Polevoy’s defamation claim was barred by the statute.”

    The case is pending before the California Supreme Court.

  6. Thanks for this excellent post – I’m off to craft my comments policy.

    Would appreciate your thoughts on the responsibilities of agregators of blog content. If this happened on a shared blog, would all the bloggers be liable (not that aaron is)? What about automated agregators, like technorati – what is their responsibility for moderation? Any thoughts appreciated.

  7. I wonder what would have happened Aaron was based offshore – say he blogged from Nigeria – would they have sued him there? The mind boggles – what a complicated world publishing is.

  8. The real issue for bloggers and aggregators is how they respond to notices that the information is either false, defamatory, or proprietary/confidential/trade secret. Aggregation by automation or assertions that you do not moderate are irrelevant. If you don’t moderate you will simply be white noise. And if you do not respond you will simply be short-lived white noise.

    The question of jurisdiction is actually becoming much clearer. The company would have sued Aaron in Nevada regardless of where Aaron blogs. It would have been up to Aaron to contest the claim of jurisdiction. The Nevada court would focus on where the harm (if any) was directed.

  9. But, the funny thing about the libel post was that I wrote it back in February, and shot it out to a a handful people, and it got no pick up, or from some people just dismissed out of hand (and quite rudely, actually).

    I reposted it a few weeks ago, because it seems more timely now than over (and really now more than ever) because as more and more people begin to blog professionally and personally, these are issues that people aren’t really thinking about while they write and accept comments. I do have a blog policy, but it is likely not enough.

  10. In my painfully personal experience, while libel is indeed fairly common, it’s very difficult to prove here in the US at least. But be weary if you decide to criticize a former employer–they may have additional rights. I’ve seen just as many references in lawsuits to violations of confidentiality, non-disclosure, non-compete and other severance agreements. I’m not sure if it’s harder or easier to prove these than libel, but please make copies of any agreements you sign when you start and end your time with an employer.

  11. I agree that we’re basically looking at a SLAPP in this instance – TP aren’t worried about trade secret issues – they’re simply looking at any excuse they can to silence any critics.

    The issue that bloggers may be sued for their comments is almost certainly something TP never anticipated, but the publicity from this case should help galvanise the rights of bloggers, not least in SLAPP issues.

    2c.

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