Are you using protection? Free speech, libel, and covering your ass

    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.

    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.

     

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