5 False Legal Threats Bloggers Routinely Face

Filed as Guides on June 20, 2011 3:56 pm

Legally, blogging can be a very scary activity. Since few bloggers are acquainted with media law before setting up their first site, they are dealing with issues of trademark, copyright, libel, privacy, etc. when they have little understanding of the law itself.

This, often times, creates problems where a blogger oversteps a legal boundary and finds themselves either being sued or threatened with legal action. However, it also can create the reverse problem, one where the blogger is threatened with legal action when they haven’t done anything against the law.

To be clear, in the U.S., anyone can sue anyone for any reason at any time. If your sole purpose is to avoid a lawsuit, being within the law is, unfortunately, no protection. There’s always a chance you could have to spend the time and money to defend yourself in court.

However, if you have a more practical goal of not being hit with a lawsuit that has a chance of success, you still don’t want to give in needlessly to false legal threats. With that in mind, here are five of the more common false legal threats that bloggers face and why they carry no weight.

1. If You Don’t Remove that Comment, You’re Libeling Me

A lot of times, commenters on your site will say something that is mean spirited toward someone else and it’s possible that the person who the comment is about will write you and request its removal.

While it may be a reasonable reaction on their part, if they threaten to sue you for libel, they are way off target.

Section 230 of the Communications Decency Act makes it clear that the medium of a libelous message can not be treated as the source. As such, if the comment didn’t come from you but was merely posted on your site, you have no responsibility for it and no need to remove it.

That being said, you may still want to remove the comment because libelous comments do not make for a good community and it probably isn’t the kind of discussion you want to encourage. However, the legal risk of having it up is effectively nil, at least as long as you are in the U.S.

2. You Can’t Name Your Site That, That’s Copyright Infringement

People without understanding of intellectual property law have come to use copyright to mean just about every type of infringement, real or imaginary. However, all types of intellectual property have their limitations.

Copyright explicitly does not protect titles and names so anyone claiming copyright infringement in a blog name or domain is missing the point.

It’s possible that copying a name might be a trademark infringement, but trademark is very limited protection and only covers names used in conjunction with a business (meaning personal blogs effectively receive no protection) and against uses that might cause confusion in the marketplace.

For example, if you make a blog entitled “Magic Hub” that talks about Magic: The Gathering it can’t infringe on a site called “Magic Hub” that sells magic tricks as they are in two different marketplaces.

Also, trademark can’t protect generic terms, try as hard as some companies do to make it.

Still, you might want to change the name of your blog if it is the same as another site, it’s always better to have an original site, but it’s important not to let false legal pressure make you do it against your will.

3. Your Negative Review is Libelous

Negative reviews are a common source of legal headache for bloggers as companies will routinely stretch the boundaries of the law to try and get them taken offline.

It’s important to note that it is not defamation to write an honest negative review of a product, service or company. As long as the material facts of the review are accurate and honest, including what the subject of the review is and what happened when you tried to use it, your opinion is protected.

Though you can not materially and deliberately misrepresent a product, for example saying that it doesn’t do something it does or say that it makes claims it never has, as long as you stick to the facts about a product and your experience with it, you can review it, even negatively, without fear of being defamatory.

Truth and opinion are defenses in a libel suit so, as long as you stick to those things, your review should be fine.

4. You Can’t Talk About My Product/Service, That’s Infringement!

Some companies, especially in the face of a negative review, will try to claim you using their trademarked name is a violation of their rights, citing either trademark, or even worse, copyright infringement.

As mentioned in the second item, copyright does not protect product, service, company or any names at all. Trademark does, but only against confusion in the marketplace.

You are completely within your rights to use a trademarked name in a review when talking about the actual company, product or service.

Don’t let a company who dislikes your negative review attempt to bully you into taking it down, especially when you didn’t say anything untrue.

5. You Can’t Repeat That, It’s an Invasion of My Privacy

Though you can easily and legitimately be sued for violating someone’s privacy by publicly disclosing private and/or embarrassing information about them, you can’t if the information has already been made public.

For example, if someone publishes an embarrassing story about themselves on their blog, it’s considered to be made public already so repeating the facts of it on your site, even if your site is much more popular, is not a violation of their privacy as they already made it public.

Private facts cease to be private once they are publicly disclosed and repeating private facts already made public, even if first disclosed by a third party, is not a violation of their privacy.

That being said, if the private facts turn out to be untrue, you can be sued for libel as repeating a libelous statement is no defense, unlike if it is merely private.

Bottom Line

It’s important to remember that, if you’re ever confronted by a legal threat, no matter how bogus it seems, the best thing to do is to seek good legal advice on how to handle it. If the threat is false, an attorney can likely tell you as much in very little time and possibly even draft a response letter for very little cost.

Even in cases of clearly false legal threats, this is time and money well spent.

The main thing though is to know your rights on the Web and to not be easily cowed by false legal threats. Even if the person making them genuinely believes they are within their rights, you can’t let yourself be intimidated needlessly by misguided arguments.

In short, the first step to protecting your rights is knowing them and this column, hopefully, is a good start to understanding some common situations you don’t have to back down.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for The Blog Herald. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

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