The Dangers of Blogging
Here’s a shocker; blogging is huge. And it’s getting bigger every second, considering that it is estimated that millions of new blog posts hit the internet every minute, and even this estimate is probably inaccurate as I write. With copies of the social media book Groundswell and many others quickly appearing on the desks of the corporate world, the social media phenomenon will continue to exponentially grow into a multi-headed monster. Of course with anything this big and exciting, there is always a caveat that threatens to spoil the party. In this case, it is the legal liability that poses a threat to those who take part in blogging and other social media. There are many risks associated with it, but the focus of this white paper is mainly on the defamation exposures.
Blogging posts can contain anything from sterile, innocent commentaries to inflammatory rants and defamatory battery. This is where the law and subjectivity collide head to head to present liability exposures to you, your employees, and your company. Furthermore, as this risk becomes more apparent to the general business community, the excitement and pioneering spirit may be tempered with caution and restrictive guidelines.
I recently read a blog at www.ChrisBrogan.com where a blogger posted her frustration over the fact that a business client was asking her to carry errors & omissions insurance for her blogging work on behalf of the client. Further frustrating her was the fact that upon reviewing her blog, the insurance underwriter declined to offer a coverage quote due to the fact that the blog appeared “error prone and not subject to verification”. Her response to this was shock, considering after all, it was a blog! The point to understand here is that although blogging is a totally new concept and is defined only by itself, defamation is not new and is defined by law.
Defamation comes in two flavors; slander, which is verbal infraction, and libel, which is the written word version. The Merriam-Webster dictionary defines libel as “a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression” or, “a statement or representation published without just cause and tending to expose another to public contempt” The cousin to libel is false light, but differs in that the written communication may in fact be true, but is misleading and is considered an attack on one’s dignity and causes emotional or mental stress. Keeping these definitions in mind when considering the nature of many blogs currently online, it should come as no surprise that defamation litigation arising out of blogging is growing in the U.S. The Media Law Resource Center online at www.medialaw.org has a comprehensive list of various court cases based on blogging. In any case, let it be known that liability arising out of blogging is a very real threat.
The question now is how do you avoid risk when blogging? The key is to take steps to avoid blogging that could potentially open you up to a lawsuit in the first place. I know, I know; after all it’s a blog! But common sense never hurt anyone, and it goes a long way in reducing your risk if you apply it when writing a blog post. I have heard many bloggers hang their hats on the fact that you can’t be sued for your opinion. Generally, this is true, but if it can be implied that you meant and caused emotional harm, you may have a problem. You have to keep in mind that subjectivity runs in the veins of the legal process, and it will be a judge or jury that determines what you meant if you are sued. From a corporate standpoint, you should also have a clear policy on blogging for your employees. The reason for this is that your company can be held responsible for the actions of your employees during their course of employment. Employees posting comments about competitors or ex-employers can be a hot spot for legal trouble. In some situations, you can even be held responsible for third party, non employee comments posted on your blog. Section 230 of The Communications Decency Act of 1996 does provide immunity for blog owners/administrators from liability arising out of third party comments on their blogs, but it is not completely failsafe. If it can be at least implied that you either incited the comments, or that you didn’t delete them where in the past you had deleted similar comments, it might nullify the immunity. To that end, many in the legal community argue that it is best to not even allow third party comments on your blog. The shock! After all, it’s a blog!
In the end, you can be covered for defamation suits under the Personal & Advertising Injury provision in your general liability coverage if you are not engaged in the business of advertising. This is also depends on the particular general liability form being used and whether or not there is an exclusion that removes it. If you are in the business of advertising, general liability will more than likely exclude it, and you will need to purchase media liability/errors & omissions coverage. These policies typically provide coverage for libel, slander, invasion of privacy, and defamation, and can also include coverage for plagiarism, piracy, intellectual property infringement, and error and/or omission and misstatement among others. These particular insurance forms are non-standard and vary from insurer to insurer, so close analysis is important. Of course, you also have to take into consideration whether or not you are truly engaged in the advertising business. Interactive companies have a potentially serious problem, as they have one foot in the advertising business and one foot out, which could potentially present a problem. And in the event of a defamation claim, the insurance company will make a subjective determination of whether or not you are in the business of advertising, having a big impact on whether or not they deny the claim. It is always important to determine these facts before you have an incident. The underwriters quoting the coverage for you will, among other things, look closely at your blogs and determine the level of risk, how well you manage it, and what premium is appropriate based on their analysis. So if your blog has comments accusing people of terrorism and murder, you can assume that insurers will not be enamored by your risk. Again, it all goes back to common sense. For more information on the legalities of social media and the internet in general, check out the website for the Electronic Frontier Foundation, which is a non profit watch dog group working to preserve your rights on the internet. It is a great informational resource providing some great insight on everything from privacy to intellectual property.
In conclusion, the legal risks associated with blogging/social media are no different than any other risk exposure that businesses face. You must identify the risks, take steps to avoid and/or reduce them, and determine the best insurance strategies to back it all up. If you do this, your potential for loss is reduced, your claim frequency will be low or non existent, and you will pay lower insurance premiums. All of this is surely a downpour on the parade for those embracing social media (including yours truly). But the reality is that if you or your employees throw caution to the wind when engaging in blogging and other social media, you might be opening up a legal can of worms that could jeopardize your company’s assets. After all, it’s a blog!
IMPORTANT NOTICE: The information presented here is for informational purposes only and should not be relied on as legal advice. No one should act or refrain from acting on the basis of the information provided but should instead seek the appropriate legal advice on the particular facts and circumstances at issue from a properly licensed attorney.
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