September 22, 2008

There is a widely held belief that the Internet is a legal no man’s land, where people are free to publish what they wish without fear of censure or repercussions. While this may have been true back when the Internet was populated largely by techies swapping information on obscure Usenet groups, it is no longer true today. Perhaps it’s a product of the maturing of the medium that lawyers are starting to take notice. Perhaps it’s because some bloggers and Web site operators, albeit a small number, are making money from their online publishing activities. Whatever the reason, there has been a steady –- and dramatic –- increase in the number of lawsuits filed against online publishers. 

This course addresses three important areas of media law that specifically relate to gathering information and publishing online: defamation, privacy and copyright. >Learn more or enroll now
Spacer SpacerIn the last 10 years, we have seen the number of civil lawsuits filed against bloggers and other online publishers increase from 4 in 1997 to 89 in 2007 (See Figure 1). We aren’t just talking about the CNN’s and New York Times’ of the world. At the Citizen Media Law Project, which I direct, we have cataloged more than 280 such lawsuits filed in 43 states and the District of Columbia, ranging from copyright infringement claims against celebrity-gossip bloggers to defamation claims against operators of hyper-local journalism sites.

While only a few of these lawsuits have resulted in liability, seven cases in our database resulted in verdicts or settlements in the six-figure range (See Figure 2). For example, the largest judgment to date involved a $11.3 million defamation verdict against a woman who criticized an organization she hired to help remove her son from a boarding school in Costa Rica, referring to the head of the organization as a “crook,” “con artist” and “fraud.” Scheff v. Bock (Sept. 19, 2006 Florida Circuit Court).

In fact, every time someone publishes anything online, whether it’s a news article, blog post, podcast, video or even a user comment, they open themselves up to potential legal liability. This shouldn’t come as a surprise because the Internet, after all, is available to anyone who wishes to connect to the network, and even the smallest blog or most esoteric discussion forum has the potential to reach hundreds of millions of people throughout the world.

Often the legal risks are small, but not always. Whether you are seasoned journalist or just someone who occasionally posts online, you will benefit from a basic understanding of media law. Let’s start with a few of the more obvious risks.

First, if you publish information that harms the reputation of another person, group or organization, you may be liable for “defamation” or “false light.” Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact. False light, which is similar to defamation, generally involves untrue factual implications. The crux of both of these claims is falsity; statements of opinion and truthful statements and implications that harm another’s reputation will not create liability, although the latter may open you up to other forms of liability if the information you publish is of a personal or highly private nature.

Second, if you publish private or personal information about someone without permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. For example, in most states you can be sued for publishing private facts about another person, even if those facts are true. The term “private facts” refers to information about someone’s personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This would include such things as writing about a person’s medical condition, sexual activities or financial troubles.

If you use someone else’s name, likeness or other personal attributes without permission for an exploitative purpose you could also face liability for what is called “misappropriation” or violation of the “right of publicity.” Usually, people run into trouble in this area when they use someone’s name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person’s identity for the user’s own personal benefit, whether or not the purpose is strictly commercial.

Third, if you allow reader comments, host guest bloggers on your site, operate an online forum, or if you repost information received from RSS feeds, section 230 of the Communications Decency Act will likely shield you from liability for problematic statements made by your users, guests and other third-parties. You will not lose this immunity even if you edit the content, whether for accuracy or civility, and you are entitled to immunity so long as your edits do not substantially alter the meaning of the original statements. Keep in mind that this important federal law will only protect you if a third-party –- not you or your employee or someone acting under your direction –- posts something on your blog or Web site. It will not shield you from liability for your own statements.

Finally, if you publish or use the creative work of others without permission, you may expose yourself to legal liability under copyright law. It is a widely held misconception that works on the Internet are not covered by copyright and thus can be used freely. This is not true. Copyright law applies to online material just as it does to offline material. Fortunately, an important legal doctrine called “fair use” may make it legally permissible for you to use a copyrighted work without permission for purposes such as commentary, criticism, parody, news reporting, and scholarship. Whether or not a use is lawful usually depends upon how different or “transformative” the use is from the original.  

To help you better understand these topics, Poynter’s NewsU has just launched a course entitled, “Online Media Law: The Basics for Bloggers and Other Online Publishers.” The course, which includes games and learning exercises, is designed to help bloggers and other online publishers understand their legal rights and responsibilities. The free course also provides resources to help online publishers improve the accuracy and quality of their reporting.

David Ardia is a fellow at Harvard University’s Berkman Center for Internet & Society and the director of the Citizen Media Law Project, which provides legal assistance, training and resources for individuals and organizations involved in online and citizen media. Prior to coming to Harvard, he was assistant counsel at The Washington Post and before that he practiced law at Williams & Connolly in Washington, D.C., where he handled a range of intellectual property and media litigation. 

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