The Legal Risks of Blogging

Filed as Features on July 21, 2008 8:55 am

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A recent article in ABC News paints a fairly grim picture about the current state of blogging. According to the article, as well as the Media Law Resource Center, there have been 159 civil and criminal court actions taken against bloggers since 2004 with countless others threatened into silence before any kind of action was filed.

Though the number of actions taken are still very small compared to the number of bloggers writing (Technorati was tracking over 70 million blogs at its last report), the threat of legal action is enough to scare many bloggers into changing the way they write, removing content or otherwise altering their site.

The problem is that, even if the image of bloggers being sued is an exaggerated one, the image of bloggers being threatened with such suits is much less so. For every lawsuit that reaches trial, there are dozens that are settled and for every one that is settled there are likely hundreds that are threatened, but never filed.

This has helped to create a climate of fear, one that bloggers need to be prepared for.

Arrests and Criminal Charges

As the ABC article points out, the danger you are in for arrest is almost directly related to the country you are operating in. If the country posts severe restrictions on access to the press and free expression, then criticizing the government can lead to an arrest.

But while these arrests may happen in Egypt, China and Iran, the countries cited in the article, they are almost unheard of in countries such as the U.S. However, there are still at least a few ways that a blogger the U.S. could find themselves in arrested for what they write. Some examples include the following:

  1. Threats and Harassment: If you use your blog to frighten or intimidate others, there is a slew of potential criminal charges that could apply depending on the nature of what was said and the reason it was said.
  2. Child Pornography: Obviously, any publication of what might be deemed child pornography could result in an arrest.
  3. State Secrets: Equally obvious, giving out information that may jeopardize national security could also be cause for arrest.
  4. Criminal Copyright Infringement: Though copyright infringement can become a criminal offense, it is unlikely that a blog will reach the required level. Most current criminal copyright infringement cases involving the Web in the U.S. have dealt with bittorrent trackers and other file sharing sites, not blogs, but it still is at least theoretically possible.

In short, while there are ways that you can be arrested for your blog, if you operate your site in good faith and avoid obvious legal issues, criminal charges are unlikely unless you live in a country where they are more common.

Still, it is important to know your rights and the boundaries the law sets before you in order to be certain that you do not run afoul of them. If you think that something you are considering could create a situation that you could be arrested for, it is wise to consult with an attorney before pressing the “publish” button.

Lawsuits and Civil Disputes

But while criminal cases involving bloggers are still very rare in most countries, lawsuits and threats of lawsuits are much more frequent.

The problem is that, while journalists have long studied media law as part of their education and training, most bloggers have not and are both unaware of their rights and the gray areas they have to avoid. Likewise, many people who feel that they were wronged may not understand the rights a blogger has and that they, the allegedly infringed, have no recourse.

This has set the stage for a lengthy series of legal scrapes, the bulk of which never result in a lawsuit being filed, where one or both parties do not fully understand their rights in the situation. These situations are dangerous and often lead to one or both parties unwittingly hampering their legal rights.

Though the ways that a blog could find itself are in legal trouble, the most common seen these days are the following:

  • Copyright
  • Defamation (libel)
  • Privacy
  • Trademark
  • Trade Secrets

With that in mind, it is important that bloggers, big and small, to understand the law in these areas. Fortuantely, the Electronic Frontier Foundation (EFF) has assembled an excellent legal guide that covers most of these areas.

Best of all, the guide is in simple, easy-to-read English that explains these matters in Q&A format, making it a fast an informative read.

Conclusions

The simple truth is that there are many legal risks associated with blogging. Bloggers do get sued and many more are threatened with legal action.

But while many of these disputes are unavoidable, for the most part, one can avoid these types of disputes by operating in good faith, having a solid understanding of the law and knowing their rights.

But while there is no manditory course on media law for bloggers, there are many out there, including the EFF, who are willing to help you understand and empower yourself.

But while no one likes to take the time to study law, knowing your rights is an important part of blogging without fear and being the most effective blogger you can.

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  1. By Slevi posted on July 21, 2008 at 11:54 am
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    Copyright infringement is probably going to be changing soon though, torrent trackers are nice but slowly they’re not waging up to the huge amount of blogs which fill up with links to download sites like RS. Posting tons of music, film and games.

    Of which most are your typical free blogspot blogs. With the rapid speed in which they keep increasing I bet we’ll be finding blogspot targeted as next Google product for harboring copyright infringing material in an attempt to drag out another billion.

    As for the first three, well obvious that they would give trouble. Childporn is just *facepalm*, of course there are cases in which artistic pictures or medical pictures are regarded as childporn by the general public, but I don’t know a single modern country in which that ever lead to legal trouble.

    State secrets really speaks for itself, and so does threatening people or even harassing them. If that’s going to be your reason to blog to begin with, don’t worry about getting arrested for it but just do the blogosphere a favor and don’t blog.

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  2. By Jonathan Bailey posted on July 21, 2008 at 3:14 pm
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    Slevi: I’m not sure if copyright infringement is going to change that quickly though. Sure, some blogs are engaging in a very high amount of copyright infringement but it is still easier and more financially practical to shut them down with a DMCA notice or other action. Besides, the vast majority of blogs do not infringe nearly enough to be considered a criminal copyright infringer.

    That being said, you are right that some blogs do and I suspect that we may not be far off from our first criminal copyright infringement case against a blogger, but it will be a warez site or something that is obviously illegal from the outset.

    If you don’t blog for the purppose of infringing, I doubt you have much to worry about.

    Indeed, most of the things that would cause a blog criminal trouble are indeed patently obvious. In the U.S., you have to do something pretty stupid before the action outweighs your first amendment rights. I think that’s a good thing.

    And I agree with your last point, if you do any of those things, you’d be better off not blogging at all…

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  3. By Paul William Tenny posted on July 21, 2008 at 5:08 pm
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    And what is the number of civil cases counted that were dismissed due to safe harbor? “159 civil and criminal court actions” means nothing without knowing how at least the bulk of them turned out.

    In the specific case mentioned in the ABC story, it should be immediately clear that it’ll be tossed — you can’t be held liable for comments that you didn’t write.

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  4. By Chris Sterlling posted on October 5, 2008 at 4:36 am
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    What is happening to the internet these days!?
    Wasn’t the internet meant to give us unlimited freedom and access to all the knowledge of the world? – And not limit us to certain pieces of knowledge and get charged for doing things wrong..

    People don’t deserve to live in fear in this day and age..

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  5. By Mike Dailey posted on January 18, 2009 at 10:31 am
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    I understand that there are some folks that feel as though the blogs should be left alone, but I also understand the views of those that may take action against a blog.

    If a blogger chooses to defame someone, commit libel against a company or individual, post trade secrets, etc., that blogger is quite possibly breaking the law and is definately in the wrong. Our opinions out here in cyberspace are our opinions and we are entitled to them. However, similar to the old saying “your rights end where your fist ends and my nose begins” applies out here in Cyberspace. We have the right to our opinions as long as our opinions are based on fact, our own views, and our own experiences.

    There are those cases where bloggers has posted the “my doctor doesn’t know what he is doing” posts and were sued by the doctor for defamation. Those bloggers should have been saying “I am not happy with the work of my doctor”, for instance, which limits the scope of that opinion to that one instance and individual.

    We all as bloggers need to remember that our words out here can and do have repercussions and we need to ensure that what we post on our blogs is based and limited on our experiences alone.

    -Mike D

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  6. By Ben posted on September 23, 2009 at 2:17 am
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    It can only be harmful if you’re truly doing something illegal. I am currently taking medical coding classes and found alot of helpful information on blogs. They’re not all bad.

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