Marc Guerrero Writes : Whether you’re a newly minted blogger or a relative old-timer, you’ve been seeing more and more stories pop up every day about bloggers getting in trouble for what they post.
Like all journalists and publishers, bloggers sometimes publish information that other people don’t want published. You might, for example, publish something that someone considers defamatory, republish an AP news story that’s under copyright, or write a lengthy piece detailing the alleged crimes of a candidate for public office.
The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you’re doing is legal. And on top of that, sometimes knowing the law doesn’t help – in many cases it was written for traditional journalists, and the courts haven’t yet decided how it applies to bloggers.
But here’s the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn’t use the law to stifle legitimate free expression…
To be clear, this guide by the Electronic Frontier Foundation isn’t a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide the kind of advice you need if you’re being threatened with a lawsuit. The goal here is to give you a basic roadmap to the legal issues you may confront as a blogger, to let you know you have rights, and to encourage you to blog freely with the knowledge that your legitimate speech is protected.
Please note that this guide applies to people living in the US. We don’t have the expertise or resources to speak to other countries’ legal traditions, but we’d like to work with those who do. If you know of a similar guide for your own jurisdiction or feel inspired to research and write one, please let us know. We can link to it here.
Legal Liability Overview
The Legal Liability Issues FAQ briefly addresses some common legal issues that affect you as a publisher, especially situations where you may face legal claims or threats based on information you published on your blog.
What should I do if I get sued for what I blogged?
You should contact an attorney (if you don’t know an attorney, EFF may be able to help you find one). If the statement at issue is protected speech, you may be entitled to move to strike the complaint under your state’s Anti-SLAPP laws.
How do I know if I am being SLAPPed?
SLAPP stands for Strategic Lawsuit Against Public Participation, and the Anti-SLAPP laws are designed to help people sued for legitimate, protected speech made about public issues. If you are sued because you wrote about an issue of public interest or concern, you may have been SLAPPed. The California Anti-SLAP Project and the First Amendment Project have excellent FAQs on Anti-SLAPP laws. Note that Anti-SLAPP laws don’t exist in every state, and they vary quite a bit among states, so this may not be available to everyone.
Can EFF defend me?
Maybe. EFF is a small, grassroots legal advocacy nonprofit supported by member contributions. We provide pro bono (free) legal assistance in cases where we believe we can help shape the law. Unfortunately, we have a relatively small number of very hard-working attorneys, so we do not have the resources to defend everyone who asks, no matter how deserving. If we cannot assist you, we will make every effort to put you in touch with attorneys who can. If you’re in trouble, you can contact us at email@example.com.
We also encourage you to review and use our extensive web archive of legal documents athttp://eff.org/legal/cases/
. You may download any of our legal filings.
I’m not in the United States — do these FAQs apply to me?
No. This legal guide is based on the laws in the United States, where there is a strong constitutional protection for speech. Many other countries do not have strong protections, making it easier to sue for speech. (See, for example, the BBC’s guide, How to Avoid Libel and Defamation.) However, US courts are reluctant to enforce foreign judgments that would restrict your freedom of speech. So if you are sued in the United Kingdom for defamation, you might lose your UK case, but the winner would have a hard time collecting in the United States.
If you know of a similar guide for your own jurisdiction or feel inspired to research and write one, please let us know. We can link to it here. We don’t have the expertise or resources to speak to other countries’ legal traditions, but we’d like to work with those who do.
Do the laws vary from state to state?
Yes. While the Constitution and federal laws, such as copyright law or Section 230, apply nationwide, many laws that affect bloggers vary from state to state. For example, defamation, reporter shield laws, and privacy laws are defined by each state (within constitutional boundaries).
What legal liability issues can arise from my blog?
Generally, you face the same liability issues as anyone making a publication available to the public, and receive the same freedom of speech and press protections. The main legal liability issues include:
Intellectual Property (Copyright/Trademark)
Right of Publicity
Publication of Private Facts
Intrusion into Seclusion
Enough of your legal mumbo-jumbo, just give it to me straight!
If you’re concerned that you may have published a statement on your blog that could be false or cause harm to someone’s reputation (or someone is claiming you have), check out The Bloggers’ FAQ on Online Defamation Law.
The Bloggers’ FAQ on Intellectual Property will help you understand your rights to link to information, quote from articles and blogs, or otherwise use someone else’s creative works. It also addresses situations where you can use the brand name of a good or service in your blog. Here you can also learn about the right of publicity, which is relevant if you want to use someone’s name or image in a commercial context.
Trade secret law concerns the protection of confidential corporate information; for more information see the Chilling Effects Clearinghouse’s FAQ on trade secret law.
The Bloggers’ FAQ on Privacy covers “publication of private facts” law, which is designed to protect a person’s private information, even if the information is truthful. It also addresses “intrusion into seclusion” law, which is designed to protect people’s privacy and their interest in being left alone.
Are these the only legal issues for publishers or bloggers?
No. In our litigious society, there are many “causes of action” — reasons for initiating a lawsuit — which a creative and determined plaintiff can dream up. Aggressive plaintiffs will sometimes use dubious causes of action in an effort to squelch protected speech (for example, claiming that when they receive an offensive email, it constitutes trespass to the email server (see EFF’s Open Letter to Shearman & Sterling). Fortunately, First Amendment protections for publications are strong and can help you defend against unwarranted legal threats.
What if I get sued for something written by another person that I posted on my blog?
A federal law known as Section 230 can protect Internet intermediaries from most civil liability for statements by another information content provider. See The Bloggers’ FAQ on Section 230 Protections for more.
Do I have a right to blog anonymously?
Yes. The Supreme Court has repeatedly upheld the First Amendment right to speak anonymously: “author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” (McIntyre v. Ohio Elections Comm)
Sweet, no one will ever be able to find out my identity!
Not quite. If you try to blog anonymously through a third-party service, you may be subject to subpoenas seeking your identity from your blogging service provider. EFF has written a guide to blogging anonymously that may help you, and Reporters Without Borders has a guide to anonymizing technology.
Oh no, my ISP was subpoenaed for my identity!
If you receive notice of a subpoena and you wish to retain your anonymity, you should contact an attorney about filing a motion to quash (drop) the subpoena. Many courts have required the subpoenaing party to show a compelling need for the information that outweighs the speakers’ constitutional rights to free speech and privacy. For more information, see this list of EFF cases on online anonymity.
Hey — my ISP took down my protected speech. Did it violate my constitutional rights?
No. The First Amendment protects you against government censorship and prevents the courts from enforcing a private-party action that violates the First Amendment, but it does not require a private party (like your ISP) to host speech. Indeed, the First Amendment also includes the right not to speak and that protects your ISP against claims that it “must” host whatever you decide to say.
Should I publicize cease-and-desist letters?
You betcha! Unwarranted cease-and-desist letters chill perfectly legitimate speech. The Chilling Effects Clearinghouse is collecting a database of cease-and-desist letters to document the chill. Chilling Effects also annotates the notices to help you understand your legal rights.
Are the legal issues with forums, bulletin boards, chat rooms, web pages and the like significantly different from blogs?
No. While Legal Guide for Bloggers is focused on blogs, the legal issues discussed here are broadly applicable to a wide variety of types of online publishing. For example, a web page where you place your thoughts and opinions is similar to a blog. An online forum where people can post comments is similar to the comment section of a blog.
Do the commenters on my blog have a First Amendment right to say whatever they want in the comments?
Generally no. Unless you are a government entity operating a public forum, you have a First Amendment right to publish your blog in the way that you want, which includes the right to choose who may participate in discussions on your blog. Nevertheless, we encourage you to allow wide-open and robust debates in the comments on your blogs. Private action to edit or delete comments may be legal, but can also exclude important voices from a debate.
I’m upset that a moderator disemvowelled my comments. Is that illegal?
But the forum moderator edited some of my comments, deleted others and is being a jerk! Please tell me all the legal claims I might have against them so I can sue them into the ground.
Being a jerk is not a reason to sue someone. Nor is there a claim against blog hosts for exercising their free speech rights to control their forums. Even if there were any valid claims, please remember that lawsuits are expensive, not very fun and should only be thought of as a last resort. If you don’t like what someone is doing, you can start your own blog and express your opinions there.
- We Need Federal Anti-SLAPP Legislation, But Sen. Kyl’s “Free Press Act of 2012″ Isn’t the Answer (Yet) (Forbes Cross-Post) (ericgoldman.org)
- New Federal Anti-SLAPP Legislation Introduced: A Good Start (eff.org)