Blogs are user-generated websites where people interact by posting comments, articles, images, links, videos, and more. Like other fields of law involving technology, blog law is a new and evolving field.
Q.: If I run my own blog and accept posts from another person, could I be liable for defamatory statements made by someone else just because it’s on my blog?
A.: Probably not. In November 2006, the California Supreme Court held that an individual who posted an article on a newsgroup could not be liable for any defamatory comments in the article if he or she did not write the article. The court made this ruling based on the immunity provided by Section 230 of the federal Communications Decency Act (CDA), which provides immunity to any provider or “user” of an interactive computer service. The individual who posted the allegedly defamatory article was considered a “user” and therefore immune from liability, as long as the “user” did not write the article.
Q.: What if I monitor my website and take down some posts, but leave up a defamatory one; could I be liable for failing to perfectly monitor my website?
A.: Probably not. One of the purposes of Section 230 of the CDA is to encourage self-policing of blogs and websites generally. Because you monitor your website, you are not likely to be penalized for failing to catch every defamatory post.
Q.: As an employer, do I need employee policies on blogging?
A.: It would be wise to have policies on blogging because Section 230 immunity might not apply to an employer and a company blog. While your company blog may provide a good public relations opportunity, it may also have negative consequences. A written policy on employee use of a company blog may help avoid issues in the future by setting clear guidelines.
You must be careful, however, to avoid disciplining employees for blog content about a protected status or activity under the law, such as whistleblowing, religion, union activity, race, or gender.
You may want to consider having a policy concerning employees’ personal blogs. For example, you may want to prohibit an employee from blogging on her own blog during work hours or on work computers. Or, you may consider having a policy about limiting an employee’s ability to post content about the company or co-workers on her own blog. But, such a policy should be carefully considered and narrow in scope because balancing company interests with the off-duty behavior and privacy interests of employees is a delicate act.
Q.: What if I operate a blog and I’m subpoenaed to reveal the identities of people who have posted anonymous statements on my blog?
A.: While anonymous speech is protected under the First Amendment, that protection is not absolute. Bloggers sometimes receive subpoenas requesting the identity of an anonymous poster, although some courts will not enforce such subpoenas unless certain conditions are met. For example, a court may require the person issuing the subpoena to make some attempt to notify the anonymous posters to learn their identities. This is usually done by posting a notice on the blog.
If a person believes the anonymous poster has defamed her and wishes to bring suit, she may have to show that her case has some merit before a court would require the anonymous poster’s identity to be disclosed. In these situations, courts should balance the anonymous blogger’s First Amendment rights against the need for the information.
While the First Amendment offers strong protection for all speech, including the often spirited debate that appears on blogs, it does not protect speech that is false and harms someone’s reputation, or invades someone’s privacy.
2/11/2007
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association (OSBA). This article was prepared by Joseph A. Tomain, an attorney at Frost Brown Todd LLC in Cincinnati, Ohio and the vice chair for the OSBA Media Law Committee.