A guest post by Alison Kerr of Loving Nature’s Garden
Do you consider yourself a risk taker? What about a risky writer? Whether you think taking risks is in your job description or not, get informed, use protection, bad things can happen to writers.
Picture this, you write and publish a scathing review of some books you were sent, or maybe you’ve heard tell of some dubious business practices behind the success of a gaming company. You feel people need to know and you mention it at your blog. Do those sound risky? What about if you had a bad case of customer service from a printing company and you mention it at your blog? All of these are real life scenarios where the bloggers received letters informing them that they were involved in libel.
Who are these bloggers and what does their experience mean for you?
John Pozadzides, who writes at One Man’s Blog, is an American, an early contributor to the development of HTML and CSS, and an all-around-intelligent-sounding guy. He wrote about his experience with a print service at his blog back in 2007. There have since been many comments left on John’s post. In September of 2010 John received an email which he considers a threat to sue. The email related to what someone else wrote in the comments on John’s post, a comment written by another writer.
Bruce Everiss is a British gaming blogger who received notice that he was being sued in Australia by an American-registered company over his online accusations of dubious business practices.
And Paul Z Myers is an American associate professor at the University of Minnesota and professional reviewer who published an overwhelmingly negative review of two books by Stuart Pivar at ScienceBlogs.com.
I don’t know about you, but when I learned of these I was rather aghast, and just a bit worried. I’m not getting rich any time soon from blogging; taking risks is not my gig. The thing is, anyone can be sued for pretty much anything. The important thing to look at is real consequences. Were these writers doing anything wrong and what happened to them? What freedoms of speech do we have as professional writers, what exactly is libel, and if you should be covering your ass what kind of protection should you use?
Free speech
Democratic nations, including English-speaking America, have established legal protections for those who disseminate information through the written word:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press… The Bill of Rights — the first 10 amendments to the Constitution — Dec. 15, 1791.
There’s no legal protection against stupidity
There are plenty of cases where damages have been awarded to individuals who were libeled when a writer threw caution to the wind.
You don’t even have to be a professional writer to be sued. Take a look at the case of the £10,000 awarded to the UK law student who’s former friend ranted about him on Facebook. Or there’s the first blogger in the USA to lose a libel suit back in January 2006; David Milum was ordered to pay $50,000 to the lawyer he libeled.
Now, writing defamatory stuff online about a lawyer or law student… well, let’s just say it’s not too smart. But John Pozadzides didn’t even write the words he’s being sued for. I’m not calling him stupid.
So, what is libel anyway and what about comments at a blog?
“Libel and slander are legal claims for false statements of fact about a person that are printed, broadcast, spoken or otherwise communicated to others. Libel generally refers to statements or visual depictions in written or other permanent form…” – Media Law Resource Center. It’s not only individuals who can bring a libel case though, businesses can too.
Is John Pozadzides liable for a comment at his blog? Under American law Section 230 “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” – Electronic Frontier Foundation. It’s unlikely that John is legally responsible for the comment in question at his blog, though he may have to pay some legal costs just to check.
John Pozadzides is lucky he’s in America
It turns out, at least for the moment, that if you’re an American you’re ahead. Laws related to libel vary depending on where you live, where you publish, whom you write about, and where your readers are. Earlier this year British gaming blogger Bruce Everiss was sued in Australia by an American-registered company adding to growing concerns of tourist libel.
Where will it end? For American writers the good news is that President Obama recently signed into law the Speech Act, which aims to curb libel tourism, protecting the freedoms of speech for Americans provided by the First Amendment.
London – libel capital to the unlucky
British writers and non-Americans who’s writing can be read in England, are not so lucky. According to the BBC Outdated Libel Laws Need Reform. Libel laws which are too strict ‘are used by wealthy foreign individuals to “bully people who try to hold them to account”’ and are a magnet for tourist libel cases, leading to London being named “a town named sue”.
But the fun doesn’t stop there: under English law “If you don’t pre-moderate your blog’s comments you can be held responsible…” What to do? Taking down your content and offering a written apology might be sufficient to solve your problem if you receive a libel letter. Alternatively, your ISP might just take down your content for you over fears of their own liability. And being in America is no protection if you don’t know your rights, as demonstrated recently by the 70,000 Blogs Shut Down by U.S. Law Enforcement.
What kind of protection works?
Just like in other areas of life, protection is advised.
- Start with exercising morals and ethics in your writing. You’re a professional. Despite the traffic it might bring, not all sensational content is advisable. Here are a couple of starting places: The Responsible Blogger’s Guide to Dealing With Big Brother at CopyBlogger.com; also, read these defamation avoidance tips from Australia.
- Keep up to date with your rights and responsibilities as a blogger, freelance writer, or publisher. Unfortunately claims against professional writers are more often than not an attack on free speech. Find out how defamation laws apply to you at home and abroad. Consider this part of your professional training. American bloggers can consult the Electronic Frontier Foundation for a comprehensive guide to bloggers rights. The organization International Pen defends freedom of expression for writers across the globe and English Pen is working to reform English libel law.
- Have the name of a good lawyer handy – someone you trust to answer your questions without charging you a fortune. Organizations which may be able to advise you and who represent some writers for free in cases which champion free speech include the already mentioned Electronic Frontier Foundation and English Pen.
- When you write for others freelance, pay attention to your liability under the contract you are given. The American Society of Journalists and Authors has a guide to dealing with indemnification clauses in contracts. You can request wording changes on contracts rather than just signing what you are given.
- When you conduct interviews, archive your source audio recordings and keep your written notes. Professional freelance journalists told me that they archive these for five years. Consider it part of covering your ass on topics where your sources could be called into question.
- Look into liability insurance coverage for your business or blog. Commercial general business insurance can cover advertising injury (related to what you write about your products and those of your competitors). If you are consulting, for example providing software services, as part of your blogging you may want professional liability coverage. And media insurance is available to American writers and online publishers through Author’s Guild (annual cost is $1,500 and up).
So, what happened to Bruce Everiss, the gaming blogger with the libel lawsuit brought against him in Australia? And did Paul Z Myers have to eat his words over the laughable science books he reviewed? Bruce was required to hire legal services – he was taken to court. However, the game company Evony dramatically dropped the case against Bruce Everiss after just two days in Australian court. These days Bruce is writing more about English libel law reform and less about games. As for the case against scientist and book reviewer Paul Z Myers, Pivar voluntarily withdrew the libel claim against him eleven days after filing the complaint.
I’m a writer, not a lawyer. Please do not consider this information a substitute for legal advice.
How do you feel after reading this, are you surprised? What free speech protections do you think bloggers should be due? Do you feel the need to know more about this? Please share your response in the comments.
Alison Kerr is a down-to-earth gardener, naturalist, self-confessed bookworm, writer, cook, and homeschooling mom to two teens who blogs at Loving Nature’s Garden. You can follow Alison Kerr on Twitter.
Thanks for this reminder and warning Alison! As a freelance journalist I have always been aware of the libel threat…the laws really need changing at this side of the world as it is often impossible to report the truth of what is happening. But as bloggersm, we don’t even have the protection of the newspaper’s lawyers, so we are wide open to being sued if not careful. Freedom of speech is an illusion when it comes to trying to take on the wealthy or major corporations with a hefty bank balance and a band of lawyers to support them.
Hi again Alison…so sorry but I also meant to add a big thanks to you in my comment above, for all your tips on “How to protect yourself”in this illuminating post!
Rosemary, you are welcome for the tips.
“Freedom of speech is an illusion when it comes to trying to take on the wealthy or major corporations with a hefty bank balance and a band of lawyers to support them.” – so true. I am grateful for the protections I have, as an American blogger, but still aware that lawyers are often the only ones who come out ahead when it comes to the law in practice.
Here in Thailand bloggers can be held responsible for any comment made at their blog – because they didn’t remove it! There are people in court, and in jail over this right now. Thailand has little real freedom of speech. I’ve been censoring myself for 6 years here. Scary stuff!
Mike you have my admiration for blogging under such circumstances. Thank you for sharing about your situation. I wish I could change it for you.
We are blessed in America with the privileged of havin’ and usin’ the freedom of speech. With that right come the responsibility to use it in a way that does not hurt others. I’ve only been blogging a little over a year and if I get something that might offend others I will delete that comment.
I just popped over to thank you for your visit and hoppin’ on my blog. I sure hope ya’ll enjoy the ride. Please drop by often, the door at the Ponderosa is always open.
God bless ya’ll from the busy hills and hollers of the Ozarks! “Ya’ll come back now , ya hear!!!” :o)
Nezzy, I agree, freedom of speech is a blessing. It’s good to remember that and be thankful. Thanks for your comment.
I think this post is a good reminder of knowing your limits as a writer. I wonder if this will also apply for those who outsource writing jobs to countries that use English as their second language. I think there must be an international standard when it comes to writing. Still, if you can’t write something good, maybe you just need a time off to think of a better topic that’s interesting as well. Thanks for sharing all these good info anyway.
“I wonder if this will also apply for those who outsource writing jobs to countries that use English as their second language.”
Ajeva, are you wondering who would be liable for site content when the writing was outsourced to a writer in another country? I don’t know the legal answer to that – I’m sure the law varies depending on the country. During my research I did not read of a case like that.
Thanks for your question.
Yikes… thanks for this and the excellent resources. One of the unseen tragedies of 9/11 here in the United States is when people like me hesitate, even an instant, to write something because we now know our government looks at and listens to so much.
Grateful to be here anyway… I don’t have the courage to blog in Thailand or other less allowing countries.
Anne, you have raised another very valid aspect of self-censorship which I did not really touch on in the article, namely censorship because of concern over repercussions from government, rather than from private individuals or businesses. I agree with you, it would be a whole other thing to blog in a country where that is a concern. My hat is off to those who do.
Thanks for taking part in the discussion.
Thank you Alison for your helpful reminders – I haven’t thoroughly considered my options in case such a circumstance should arise, not since I trained as a UK journalist decades ago. Things are very different now!
I recently stepped back from involvement in reporting/challenging local politics, using Facebook and a blog, because I felt I could no longer spend enough time examining all the dense official papers to check if I had reported everything accurately. I felt a lot happier doing this sort of stuff when I was part of a newspaper or journal, with the back-up of sub-editors, my editor, and a company lawyer.
I know someone else who has moved from print journalism to online news who got in to hot water. He had checked everything as well as he could, and the “facts” were stated by local authority officers in a public meeting. But it turned out the figures were entirely inaccurate and so the criticisms were unfair. All mention of the issue had to be quickly deleted!
I had asked this journalist only two weeks beforehand what legal protection he had now he was working alone. He replied that he relied on checking facts and being uncontroversial in reporting local issues – but his case just shows that we can never be too complacent.
Thanks again
“But it turned out the figures were entirely inaccurate and so the criticisms were unfair.”
I have to say that, in instances such as this, journalists seem to be expected to be almost mind-readers, or at the very least, very thorough researchers. I suppose the up-side is that stories like this demonstrate the power the written word still has. Whether it is lucrative, as a writer trying to make a living, to spend enough time doing the requisite research is another story.
Thanks for your comment Helen.
This is such important information. But I’m thinking right now about all the negative political advertisements on television, this election season. Wouldn’t most of it be considered libelous, too?
Cheryl, you raise a good point. Here is what The Associated Press Stylebook and Briefing on Media Law has to say about this with regard to US law:
“…public officials cannot recover damages for a report related to official duties unless they prove actual malice. To establish actual malice, the official was required to prove that at the time of publication, those responsible for the story knew it was false or published it with reckless disregard of whether it was true or false.”
Alison, I’m glad you shared this information – I actually am surprised! I understand that people can choose to sue for any reason, but reading this definitely heightened my awareness – and makes me want to know more. Apparently there can be a pretty high cost for speaking (writing) ones mind.
Aileen, I’m glad you found my report useful and thought-provoking. Thanks for joining the conversation.
Hi Alison, I just saw Aileen’s RT and headed over here. Gosh no one had better then look at my review of The Secret! ;) – I do believe that there is one other point to take into consideration, the fact that sometimes, just sometimes, some people misrepresent the truth in their writing – they may hurt the reputation of a good business and misrepresent them by only telling their side of the story – granted, it is only their side but if we really put ourselves in the shoes of a small business owner who struggles as it is and some angry person who simply wants to “get back at them” for whatever reason using his online powers to do something, we may just feel that there are at least 2 sides to this story – and as far as risk and making it big with blogging, I think you can be a low risk taker and still make it huge with blogging. We don’t have to pick a fight or bring someone else down to achieve massive success, in the blogging world or anywhere else….thank you so much for your thoughts here!
You are welcome Farnoosh. I agree, we don’t need to write sensational stuff to make it big in blogging. Blogging is about serving the interests of our readers.