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Be Careful When Blogging

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Americans are now spending a quarter of their time sharing information and comments online through social networks and blogs, a 43 percent increase since June 2009, according to the Neilson Company. Blogs and other sites that allow users to generate content and interact by posting comments, articles, images, links, videos, and more, are growing in popularity and so are the lawsuits surrounding many of the controversial issues of their use.

Q: If I write my own blog, am I protected by the First Amendment and free to say anything I want?
A:
 In a landmark 1972 U.S. Supreme Court decision Justice Byron White explained that the freedom of the press is a “fundamental personal right” not confined to traditional media like newspapers and magazines. For most of our history, lawsuits regarding freedom of the press mostly centered on news outlets that profit from selling their coverage and commentary about others. Now that a studio or printing press is no longer needed to reach mass audiences, bloggers whose postings generate controversy find themselves as potential targets of lawsuits. As a blogger you can choose to let the readers know your identity or you can remain anonymous. Supreme Court rulings have equally protected the rights of both known and anonymous authors. Recent defamation lawsuits brought by individuals and businesses have had varying degrees of success in forcing Internet service providers to provide the true identity of an anonymous blogger.  Nevertheless, as a blogger, you should remember that the protection of your speech has limits.  Just as the law does not protect a person who yells “fire” in a crowded theater when there is none, your right to free speech is not absolute.
 
Q:  What is defamation?
A: 
“Defamation” is damaging someone’s reputation by making a public, intentionally false statement and presenting it as a fact, either through speech or the written word. .  In general, a private citizen claiming defamation must prove your comments were false and that you acted negligently in failing to discover the truth.  A public figure claiming defamation must prove “actual malice,” meaning that you published the comment even though you knew it was false, or you showed reckless disregard for the truth.

Q: What is invasion of privacy?
A:
 Invasion of privacy generally means you’ve intruded into someone’s private secluded area or private affairs and published information without his or her consent. Additionally, invasion of privacy claims arise when you publish personal details that have not been disclosed to the public, such as a person’s sexual orientation or a private romantic encounter.

Q: What are copyright and trademark infringement?
A:
 Copyright infringement occurs when you post someone else’s creative work, like a photo or a song, without his or her permission. However, in some cases you may post someone else’s work, including educational lessons or research with the work.  This is called a “fair use” of the material. Trademark infringement is similar, in that you can use someone else’s business logo or material when commenting about it, but generally may not use it for commercial purposes that would confuse consumers by leading them to believe that you are affiliated with a company or product that is not yours.

Q:  If I accept posts from another person, might I be liable for a defamatory statement made by someone else just because it’s on my blog?
A: 
Probably not. Bloggers, media sites, Internet service providers and others who host forums online have immunity from defamation claims regarding statements made by someone else and posted on a blog or website. This immunity is provided by Section 230 of the federal Communications Decency Act, which protects any “user” of an interactive computer service who did not create the defamatory statement. However, this immunity is not guaranteed. If you are actively gathering information on your own and publishing it on your blog, or if you edit someone else’s post and knowingly change his or her statement, then Section 230 may not shield you. The federal law likely will protect you if you are passing on information provided by others that you have not altered.

Q: Can my employer control my blogging at work?
A:
 With the rapid rise of social networking and blogging, many employers are allowing and even encouraging their employees to blog. However, employers are also taking steps to limit employee activities to protect the business interest.  Employers would be wise to share policies concerning blogging and social network conduct with their employees.  Employers should be aware, however, that some employee communications are protected by law, and should therefore be careful about attempting to discipline an employee for work-related comments made on an employee’s personal blog. Communications that are protected include those that have to do with protected activities such as whistle-blowing or conducting union activities, and communications about a protected status (such as discrimination by gender or race).

11/8/2010

This “Law You Can Use” column was provided by the Ohio State Bar Association.  It was prepared by Dan Trevas, a Columbus attorney and former news reporter for print and online news services.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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