Blogging Pitfalls: Courting Libel

One of the great things about the Internet is that it has enabled almost anyone to become a publisher and reach an audience of millions.

One of the bad things about that is that most people don’t have the understanding of media law to know how to avoid being sued while publishing on the Web.

One of the thornier areas that bloggers have to deal with is defamation law, specifically libel. Much like with copyright law, defamation is a misunderstood set of rules that, in the age of the Internet, can at times seem archaic and confusing but is actually in place for a very good reason.

However, also as with copyright, it’s an easy pitfall for a blogger to fall into, especially if they aren’t aware of the rules. Fortunately though, this is one blogging pitfall that is fairly easy to avoid, but it does require one to put forth some extra effort into their writing to make sure they don’t find themselves on the wrong end of a libel lawsuit.

The Pitfall

As bloggers, we routinely talk about people in our posts and, unfortunately, it isn’t always in a glowing light. Simply put, part of reporting on the news, expressing political opinion or even just talking about our daily lives forces us to, at least on occasion, talk about others in a less-than-favorable light (even if that light is only unfavorable in their own mind).

Unfortunately, if one is not careful, they can easily run afoul of defamation law, which is a set of laws designed to prevent people from saying and/or printing untruthful things to harm each other’s reputation.

While it might seem fairly simple, just tell the truth and you will almost always be safe, it isn’t always quite that easy. Sometimes, seemingly truthful statements, such as calling someone with many tax liens a “tax fraud” can result in a libel lawsuit due to subtle, but important, nuances in the statement.

Even expressing one’s opinion can be dangerous at times as well if the opinion can be confused for fact. One such case involved a commenter accusing a third party of being a “shyster”, which the plaintiff believed to be accusing him of criminal activity, which resulted in a court case.

Though libel seems fairly straightforward, staying completely safe is anything but and the consequences for not doing so can be very dire.

The Danger

The biggest and most worrisome danger danger is simply being sued. On that front, defending a libel lawsuit can be an especially dark nightmare.

In addition to the hassle and expense of finding an attorney, filing responses and appearing in court, the hassles that come with all lawsuits, the nature of libel often makes it possible for the plaintiff to sue in a “friendly”, such as what the makers of the game Evony did to one blogger before dropping the suit. In that case, a company, with no clear ties to the country, sued a British blogger in Australia where it was almost impossible for him to defend himself.

This is possible because, at least in theory, the person who has been injured needs to sue where the damage to their reputation took place and, on the Web, that could be just about anywhere.

To make matters worse, even within the same country there can be a lot of difference between jurisdictions as much of libel law is determined on the state level in the U.S. This can further complicate even “simple” libel cases.

But while a lawsuit is certainly the nightmare scenario and an increasingly common one for bloggers, it is still very rare in the big picture.

Instead, most bloggers who face libel disputes are merely threatened with legal action and forced to change or remove allegedly untruthful posts. Though it is preferable to a lawsuit, it can still lead to a great deal of worrying and confusion, not to mention a very awkward and difficult moment with your readers.

In short, even when a libel case doesn’t go to a court, it can still cause a great deal of headache, making it a pitfall well worth avoiding.

How to Avoid It

The unfortunate thing about libel is that, if you talk about people on the Web in an unfavorable light, no matter how careful you are, you will almost certainly be threatened with lawsuit though, usually, by someone fairly ignorant about the actual law.

So your first step is to educate yourself on the law itself and the EFF has a good primer on the subject. Once you understand the basics of libel, you can then actually work at taking steps to head off situations where you may be hit with libel allegations.

  1. If You Can’t Say Anything Nice: The first step is to simply avoid negativity when possible. Though this may not be possible for all sites, keeping negativity to a minimum can not only improve your legal situation, but make your blog a better place for people to visit. There are exceptions to the rule, but most bloggers have little to gain by being too negative and almost no one cries defamation over positive untruths.
  2. Stick to What You Can Prove: Truth is an absolute defense to a libel claim. However, if you claim truth as a defense, the burden is on you to prove it. Unfortunately, knowing something to be true and proving it are two very different things. When being negative, stick to what you can prove to be true and provide your evidence.
  3. Cite Your Evidence: Similarly, always be careful to state where everything you say comes from. Being careful to cite your sources, (IE: “According to court documents”) will help you a great deal as it shows you can back up your statements, that you’ve shown good faith in getting the facts right and that you are reporting on the news honestly.
  4. Fix Mistakes: Finally, if a mistake does happen and your attention is drawn to it, fix it promptly, publicly and humbly. Not only is this good practice for avoiding a libel lawsuit, but it is also the right thing to do for your readers.

Though there is no perfect shield against a libel lawsuit, or any other lawsuit for that matter, if you do your research, stick to the facts and don’t disparage people without solid proof, you will most likely be fine. However, as with the “tax fraud” case above, you do have to be careful not to unwittingly accuse people of a crime when reporting on related news. Your best bet is to stick exclusively to what you can show and add in your own conjecture.

Still, if you can do these things, for the most part, you should have no issue with libel or defamation.

Bottom Line

As mentioned above, defamation is a particularly thorny area of the law for bloggers as they can be called to just about any state or any country on such a claim. Laws vary wildly from nation to nation and region to region, but truth is almost always your best defense.

Though you can still find yourself in legal trouble for revealing private and embarrassing, but truthful, facts, those are rarely libel issues and steps into the realm of privacy law, a post for another day.

Author: Jonathan Bailey

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  1. Another possible way to protect yourself is to simply not provide identifying information about the person or organization you see as a wrong-doer. I, for example, was ripped off by a video production company that took $26K plus expenses and failed to fulfill its contract. When my lawyer (another $3K) tried to fight for some money back, the wrong-doer was conveniently out of the country. I’ve discussed this incident a few times publicly, but have not mentioned the name of the wrong-doer anywhere. It’s not likely I can be sued since I haven’t said anything bad about HIM. I also had the foresight to remove any mention of his company from any previously published blog posts so it would be very unlikely for someone to make any connection.

    Just a thought. Blogging is like walking a tightrope sometimes.

  2. Randy,The issue is MALICE, not intent. MALICE is a llgelay defined term which means that at the time the statement is made, the speaker knows or recklessly disregards the falsity of the statement made. In the Noonan case, the court went further, stating that if the true statement was made for the purpose of harming the plaintiff’s reputation, truth will not stand as a defense. I AGREE that this is a troubling precedent.The law of defamation is a very complex web of precedents, and your examples about products, etc., raise a number of other questions too. In most such cases, the statements are protected, if the judge/jury believes the viewer’s perception would be that the statements are mere puffery or sales talk . BUT, if false statements are made, could give rise to a claim of false advertising, too.Still, I don’t think the slippery slope argument vis-a-vis hate-crime legislation is really valid here. Criminal acts ALWAYS depend on proof of an element of intent.

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