Q: A blogger just wrote some grossly inaccurate information about my business. The blogger is not a customer but accepts advertising from some of my competitors. Can I sue for damages?
A: There are millions of bloggers in the U.S. Some bloggers write for fun, while others blog to make a living through advertising or paid reviews from corporate sponsors.
In an attempt to attract larger audiences, bloggers are becoming more provocative and sensational. Does it matter if blogs are accurate?
A skilled intellectual property attorney can advise you on the merits of your specific case, but in general, bloggers can be held liable for what they publish online.
So what constitutes libel? While different states have different definitions of libel, publishing a statement that damages a reputation is not enough to maintain a lawsuit. The statement, known as a defamatory statement, must be false and not a matter of opinion. Further, the blogger must have known that the statement was false or should have known by exercising reasonable care in their work.
There are other fine points of libel law that are relevant to blogging. Minor inaccuracies are generally not subject to libel if the overall context of the statement is substantially true. For example, a blogger would probably prevail in a libel case if the case centered on a seemingly innocent typo.
Unlike most community newspapers which have relatively defined public territories, a blogger’s audience can be geographically far reaching and lead to larger damage awards. Plaintiffs can seek general damages which may be determined by a jury or they can seek special damages in which they seek to recover economic damages from lost sales and profits.
The tricky element of libel cases often rests on defining what constitutes negligence from not taking reasonable care. Did the blogger turn an obvious “blind eye to the truth” or did the blogger take time to check sources that seemed to be reliable? The circumstances and facts of each case can make all the difference to a blogger’s liability exposure.
The good news for political bloggers is prominent public officials have a much tougher time proving defamation because they have to demonstrate “malice” in the blogger’s intent or that the blogger acted in reckless disregard for the truth. The definition of a public official varies state to state too. In some states even a high school football coach is deemed a public official for libel cases.
Here are a few tips for writers who are in business to blog.
No. 1: Remind readers that the blog is primarily an expression of opinion. Opinions are statements that can’t really be proven true or false no matter how outrageous the viewpoint.
No. 2: Verify information. Courts look for evidence that publishers are not reckless. If bloggers wish to publish more fact-oriented information, then they should take steps to confirm that their published statements are reasonably true.
No. 3: Let the facts speak for themselves. Bloggers can let their readers reach their own conclusion by presenting comparative information or reference facts from reliable sources.
No. 4: Include disclaimers in the web site’s terms and conditions. A site’s terms and conditions legal document can establish that the blogger is not responsible for what third parties may post on the site.
No. 5: Develop editorial standards for blog coverage. Many newspapers and magazines have formal guidelines to help editors and writers make publication decisions on potentially litigious subjects. These standards help publications demonstrate that they are not “reckless” and make editorial decisions in a consistent way.
No. 6: Be cautious about links and lifting direct quotations. Reprinting libelous statements, usually called “republication,” doesn’t separate the blogger from potential liability. Again, you are responsible for your own blog entries.
A terrific resource to help bloggers learn more about media-related law is the Associated Press Stylebook. And of course, bloggers should contact their attorney to talk through the legal ramifications of more complicated situations before they type and publish.
Susan Schreter is a 20-year veteran of the venture finance community and a university educator in entrepreneurship. Her work is dedicated to improving startup longevity in rural, urban and suburban America. She is the founder of www.takecommand.org, a community service organization that offers the largest centralized database of startup and small business funding sources in the U.S. Follow Susan on Twitter @TakeCommand.