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Bloggers Face the Law (As blogging matures, participants are learning the hard way...)
Red Herring ^ | September 23, 2005

Posted on 09/23/2005 11:19:53 PM PDT by nickcarraway

As blogging matures, participants are learning—sometimes the hard way—about the liabilities.

In tempting a new degree of honesty from their writers, blogs foment passionate debates that often border on libel. And easy access to cut-and-paste tools can inadvertently facilitate plagiarism and copyright infringement. Indeed, it’s not unusual for bloggers to cross the line into illegal activities.

But if the author is anonymous, who is left to blame? There’s precious little legal precedent in the blogosphere, but some blog publishers recently have been finding themselves held accountable for content written by others.

Aaron Wall, a 26-year-old consultant specializing in search engine optimization, publishes a blog at He said he’s tried to keep a lid on offensive comments, but allowed a vigorous debate over a company called Traffic Power, which sells tools for improving rankings on search engines. One comment labeled the company “a bunch of cheep [sic] everyday crooks,” while other writers came to the company’s defense.

After a warning phone call and a cease-and-desist letter that claimed damages could exceed $1 million, Las Vegas-based Traffic Power served Mr. Wall with a lawsuit alleging defamation and publication of trade secrets. Though Mr. Wall said he felt he was personally attacked by the company in more than one forum, his first instinct was to back down. He wasn’t sure what his legal standing was, so he figured he’d take the offending comments down.

But after Mr. Wall wrote about the situation on his blog, he won attention from other bloggers who encouraged him to fight the suit. He has now retained a lawyer and is arguing that his comments are covered by the First Amendment. The case is set to proceed in a Nevada district court.

Knowing the Rules

Mr. Wall is just one of many bloggers treading on the undefined legal turf that comes with running a blog, a media form that has become vastly popular in the last few years. Today, bloggers face a host of potential liabilities involving privacy, decency, and copyright infringement. The laws governing traditional journalists as well as online publishers seem to apply in many cases, and a few bloggers have found themselves at the center of cases.

As far as defamation is concerned, it seems that online publishers get an advantage over traditional print journalists. Bloggers are protected by the U.S. Communications Decency Act. That law has been interpreted to mean that web site operators are not liable for content posted by others, an allowance that does not apply to offline publishers.

“There are no special rules here,” said Eric Goldman, an assistant professor of law at Marquette University Law School who specializes in cyberlaw. “We have a law applicable to [online] content publishers, and bloggers are just a subspecies of that.”

But “innocent knowledge is not a defense for copyright infringement,” said Bruce Johnson, a partner at Seattle-based Davis Wright Tremaine.

Mr. Goldman said that ignorance could make online publishers liable for infringing copyright and disclosing trade secrets, even if other people put the offending content on their sites. “The problem is that many bloggers don’t realize what the rules are,” said Mr. Goldman.

But for web page operators, there is a pretty easy fix. To be protected for third-party copyright infringement by the Digital Millennium Copyright Act, bloggers need to pay $20 and submit a form to the U.S. Copyright Office.

Journalists’ Privilege?

One high-profile case could help define what legal protections bloggers deserve. The standards for bloggers disclosing trade secrets are being examined in a case involving Apple Computer before the California Court of Appeals.

The problem arose after three Apple gossip blogs published details of an unreleased music product. Apple sued the unnamed individuals known as “Does” who allegedly leaked the information to the blogs. In the case, the company has subpoenaed the bloggers, an ISP [Internet service provider], and the email provider.

The Apple bloggers have protested, saying that they share the privileges of journalists, who are allowed to conceal their sources in some cases (see What’s a Journalist? and Bloggers Told to Name Sources).

One of the major arguments by the Apple bloggers and their legal team? Essentially, Apple jumped the gun. The bloggers and the legal team led by the Electronic Frontier Foundation argue that Apple had not conducted a thorough internal investigation before taking the bloggers to court.

“Apple must first investigate its own house before seeking to disturb the freedom of the press,” said EFF staff attorney Kurt Opsahl.

The appeals are moving along. In mid-September, EFF got the court to unseal Apple’s account of its internal investigation, which showed that the company simply asked its employees if they had leaked the information and checked the related servers. The case is expected to continue for several months.

Unclear Precedent

But just like the Apple case shows for trade secret issues, there isn’t a clear precedent for bloggers and the law.

“The Communications Decency Act has been written, but not a lot of courts have applied it,” said Mr. Johnson. Bloggers are an unstable subset of many categories, so it’s not always clear which precedents apply.

One case involving allegedly libelous material posted by an online contributor to AOL that could have tested the act never received a final ruling by a judge. In the 1997 case, known as Blumenthal v. Drudge and America Online, AOL was implicated in a libel suit when it posted some gossip about Clinton White House assistant Sidney Blumenthal.

The gossip was written by political blogger Matt Drudge, whom AOL had paid so that the company could republish his reports on its web site. The offending gossip was quickly redacted after being posted but it triggered a suit by Mr. Blumenthal and his wife.

A federal judge dismissed the case against AOL based on the Communications Decency Act, and Mr. Drudge eventually settled out of court.

Invasion of Privacy

Meanwhile, another Washington, D.C., case could test the extent to which blogs can violate privacy concerns as it involves a Capitol Hill staffer’s references to her lovers in steamy posts. Attorney Robert Steinbuch filed an invasion-of-privacy lawsuit against Jessica Cutler, the former aide who became famous by blogging about him and her other sexual partners.

She has filed a motion to dismiss that case, which hasn’t stopped her from writing. On the contrary, she continues to profit from his embarrassment by publishing a fictionalized account of the matter.

Elsewhere, it appears a state supreme court could be forced to decide later this month how much free speech is allowed on the Internet. Outside of D.C., Smyrna, Delaware, town councilman Patrick Cahill has sued to reveal the four anonymous posters who badmouthed him on a local blog that acts as a message board for community matters.

A lawyer helping to defend the posters said naming them would effectively trample their rights to free speech.

“Once the defendants are identified, their right to free speech is gone,” said Public Citizen lawyer Paul Levy, who helped write a brief defending the posters. Mr. Levy’s side has suggested that Mr. Cahill, as a public official, is a fair target for criticism.

Meanwhile, Mr. Cahill and his supporters have accused the posters identified only as “Does” of using the Internet as a cover for defamation. After a judge agreed with this argument and denied protection to one of the “Does,” the case was appealed to the Delaware Supreme Court. It was argued September 7, and a ruling is expected before the end of October.

But as blogging becomes more sophisticated, new legal troubles could emerge. One new problem that’s likely to crop up: How to treat “guest bloggers” or group blogs where multiple people contribute? These relationships are rarely put down in writing, said Mr. Goldman, making them vulnerable. Liabilities and content ownership might get very messy if a friendly relationship turns sour.

TOPICS: Culture/Society; News/Current Events; Technical
KEYWORDS: blogging; journalism; law; libel; media; technology; weblogs

1 posted on 09/23/2005 11:19:54 PM PDT by nickcarraway
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To: jimrob

something I suppose we must all keep track of, I guess.

2 posted on 09/23/2005 11:54:37 PM PDT by King Prout (19sep05 - I want at least 2 Saiga-12 shotguns. If you have leads, let me know)
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To: nickcarraway

Free Republic annoyed enough politicians that it was sued by a few of their stooges. All this long before any sites were even called blogs

3 posted on 09/23/2005 11:59:26 PM PDT by Nateman
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To: nickcarraway
Seems to me a public discussion forum is just that. Of course, if John McLame ever got hold of the idea of regulating free speech, all bets are off.

Wait a minute, he already has....

4 posted on 09/24/2005 2:40:59 AM PDT by Recovering_Democrat (I am SO glad to no longer be associated with the party of Dependence on Government!)
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To: Recovering_Democrat

If a piece of news is a crime or political evidence to be distributed to the public, there is no need of copyrights.

I don't know how those libel and copyrights apply in this. This is a false law manufactured by pure lawyer BIG $$ blackmail.

Same thing with RIAA, if my kids get proselytized by trashy Sony music indsuctry cult material, they don't need to pay for it.

5 posted on 09/24/2005 3:35:00 AM PDT by JudgemAll (Condemn me, make me naked and kill me, or be silent for ever on my gun ownership and law enforcement)
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To: nickcarraway
Once the defendants are identified, their right to free speech is gone,” said Public Citizen lawyer Paul Levy,

Can't they continue to publish under a new nom de plume?

6 posted on 09/24/2005 5:11:52 AM PDT by syriacus (Galloway blusters w/ such a "cute" accent. Did Germans think Hitler's Austrian accent was cute?)
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To: nickcarraway

And those in the "press" can write whatever they please.

7 posted on 09/24/2005 5:18:32 AM PDT by Jet Jaguar
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