Sunday, January 11, 2009

Yes, Bloggers Can be Sued

There were a couple of posts on Twitter this past week about a blog from the Philippines concerned with bloggers being sued for the content of their blogs: "Suing a Blogger?" The blog asks the question whether a blogger can really be sued for their story and the comments on their site. (We are not going to get into international law or Philippine law.) In a kind of initial response, there were some tweets on Twitter simply stating "not in the US." To support this assertion, there was a link to another blog discussing the Communication Decency Act or "CDA" on Blog for Profit: "Blog Protection 101: The Communication Decency Act and Your Blog." While the CDA is applicable, the blog itself notes as follows: "Keep in mind that the CDA will not protect you for information that you create and publish on your blog." In other words, the answer to the question of whether a person can be sued for their comments on their blog is definitely yes.


First, the CDA only protects companies that provide hosting services, not the content providers. In general, that means Google is not liable for what people blog simply because they host the space for the blogs. It also probably means that a blogger is not liable for the comments made by third parties about their blog posts. However, regardless of Google's liability, bloggers are still responsible for what they put on their blog.


Second, even if someone is not liable, that does not mean they are immune from being sued. Hopefully the suit gets knocked out early for lack of a basis or because some defense is applicable. But, that does not mean the Clerk at the Court is going refuse to accept the filing. Furthermore, it is fairly easy to make adequate allegations to overcome a Motion to Dismiss and force at least some litigation.


But the bottom line here is that there is a liability possibility out there for bloggers, just like traditional print media or any other private citizen who "publishes" false and harmful statements. Now, you might say, "What about free speech?" Certainly there is a tension between free speech and defamation liability. But free speech does not mean one can lie about others to harm them. Free speech protection is primarily about public dialogue. For example, if Rick posts on his blog that George Bush is a war criminal who should be tried for war crimes (as seems popular these days), there is no liability even if Mr. Bush is innocent. On the other hand, if non-public figure Bob is trying to get a job, and his former employer has a blog in which he falsely states that Bob was embezzling money, thus preventing a potential employer from hiring Bob, there is a liability problem. And that liability exists whether the employer communicates the lie via a newspaper interview, a verbal reference check, a blog, or a comment on someone else's blog.


There seems to be a fear that bloggers will stumble into liability unawares. And the real issue is that a blog can potentially go everywhere, to everyone. It is by nature, a pulblic statement to everyone who cares to listen.


But rather than demand immunity from liability, maybe bloggers need to recognize and adapt to the media, i.e., be deliberate and thoughtful about what they post. Anyway, how can bloggers expect to be taken seriously as legitimate sources of information, if they do not have any responsibility for their statements. Instead, as Blog for Profit points out in the "How to (Try to) Stay Out of Trouble When Blogging" article, #2 is "Don't Defame."


The point is, yes bloggers can be sued, even in the U.S.


See also Bloggers and Section 230 Protection.

2 comments:

  1. Re: Bloggers being sued

    There is one situation in this comment that is not addressed specifically, and that is this: If I have a blog and someone posts a comment on it that makes him liable, am I, too, liable as the creator of the blog? That appears unlikely. If I were liable then why would not the computer manufacturer or the utility company that provides the electricity to run the computer be also liable? Nevertheless, it would be good to have this specific problem addressed. Thank you.

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  2. You are correct that it is unlikely. The issue comes down to whether the blog creator maintains control over the content, altering or modifying, what is allowed as a comment. For example, if one alters they could be considered to have provided the content. On this basis, they could be found to fall outside the statutory protection. For an interesting side note regarding a 9th Circuit case discussing the immunity see http://www.intellectualpropertylawblog.com/archives/internet-ninth-circuit-clarifies-the-scope-of-immunity-for-website-operators-under-the-communications-decency-act-of-1996.html.

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