9.1.7 Defamation and Other Risks

What is defamation? According to the EFF:

Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.

You are not exempt from laws just because you say things online. If you libel people on your blog or in a comment on someone else’s blog, they can sue you and win.

If you follow the principles in Chapter 4, you’re unlikely to libel anyone. Does that mean you’ll be immune from being sued? Unfortunately, no.

Anyone can sue anyone else for the cost of filing a court fee, and judges rarely punish people for filing lawsuits they can’t win (even if they probably know they can’t). Moreover, whereas in some countries, such as the United Kingdom, libel defendants have to prove that what they’ve said was true, in the U.S. the plaintiff has to show that it was false (and public figures additionally have to prove that the statements were made maliciously or with indifference to the truth).

Since defamation and libel do happen for real, and can hurt people, you should be careful about what you say online, just as you would if you were giving a speech. From the principles laid out in Chapter 5, it should be obvious that you need to be accurate when you say something negative about somebody. I don’t say this to scare you away from holding up the light to wrongdoing. Getting incontrovertible evidence of your claims and being fair to the people you criticize will be your best insurance against a libel lawsuit—but no amount of care is foolproof.

Defending yourself, even if you’re absolutely in the right, is expensive. So learn ahead of time ways to avoid legal risk, even if you can’t prevent it entirely. The EFF has an excellent Legal Guide for Bloggers. Here are several other valuable resources:

  • The Knight Citizen News Network’s “Top 10 Rules for Limiting Your Legal Risk”: A set of concepts and solid advice for minimizing the risk you expose yourself to.
  • The Citizen Media Law Project’s Legal Guide: This increasingly comprehensive guide has an enormous amount of content dealing with individual states. One of the best features is a “decision tree” that helps you decide whether you need separate insurance for defamation and other legal risks beyond what you may already have in your homeowner’s or renter’s policy.
  • Online Media Law: The Basics for Bloggers and Other Online Publishers. This is a multimedia course offered via the Poynter Institute’s News University. Once you pass it you may be eligible to buy specially priced insurance.

According to Kimberley Isbell, an attorney with the Harvard project and a Berkman Center Fellow, what kinds of issues you cover and how you do it determines the level of risk: Applying basic journalistic standards, such as accuracy and fairness, reduces the risk. Isbell also stresses the importance of being careful in how you use other people’s work, to avoid copyright troubles.

Not all the news is scary in this arena. If you or your organization host an online conversation, you benefit from one of the most positive parts of Congress’s 1996 telecommunications overhaul: an exemption from defamation and similar claims. This exception does not extend to the person doing the defamation. This protection for site owners has done incalculable good for freedom of speech.

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