More lawsuits trip up bloggers on Internet

[20 October 2008]

By Dan Margolies

McClatchy Newspapers (MCT)

KANSAS CITY, Mo. - Local blogger Dan Ryan has never been sued for his postings, although one commenter whose anti-Semitic ravings he deleted accused him of slander and threatened “to own my house.”

Even so, Ryan, whose daily musings about politics, homemade beer and whatever else strikes his fancy appear at www.gonemild.com, said he was not overly concerned about getting sued.

“I have the benefit of being fundamentally judgment-proof - like most bloggers,” he joked, referring to his relative lack of wealth. Also, he said, “I try to avoid anything slanderous or anything that would be actionable.”

Ryan’s caution may stem from his training as an attorney. Most bloggers, though, are less attuned to the niceties of the law. An increasing number are finding themselves on the wrong end of a lawsuit.

The Citizen Media Law Project has tallied 280 legal actions against bloggers and other online publishers nationwide. Compared with the millions of blogs out there, that might not seem like a lot. But the numbers have been trending steadily upward, from a mere four lawsuits in 1997 to 89 last year.

Although only a handful of cases have resulted in verdicts or settlements, a few have been eye-popping enough to give even the average basement-residing poster pause.

The largest was an $11.3 million defamation verdict in Florida against a woman who, on various Internet bulletin boards, disparaged the head of an organization she hired to remove her son from a Costa Rica boarding school as a “crook,” “con artist” and “fraud.”

St. Charles, Mo., authorities launched a criminal investigation after Lori Drew, an adult woman posing as a boy online, taunted 13-year-old Megan Meier with a series of cruel messages. Megan subsequently committed suicide.

Although the Missouri investigation was dropped, a federal grand jury in California indicted Drew for conspiracy and computer fraud.

The Drew case, to be sure, represents the extreme end of the blogging spectrum, where unfiltered, unmediated, unedited content is posted on the Internet.

It’s only a matter of time, experts said, before bloggers provoke more lawsuits, whether for defamation and invasion of privacy or for copyright infringement.

“In fact, every time someone publishes anything online, whether it’s a news article, blog post, podcast, video or even a user comment, they open themselves up to potential legal liability,” David Ardia, a fellow at Harvard University’s Berkman Center for Internet & Society, wrote recently on Poynter Online.

Ardia, who also directs the Citizen Media Law Project, noted that “even the smallest blog or most esoteric discussion forum has the potential to reach hundreds of millions of people throughout the world.”

Mainstream news organizations have insurance policies that cover the copyright and defamation risks associated with online publication. But until now, such insurance wasn’t available for individual bloggers.

Last month, Kansas City-based Media/Professional Insurance, which bills itself as the largest underwriter of media liability insurance in the world, launched a product aimed at the ordinary citizen blogger. BlogInsure, as it is called, appears to be a first - liability insurance for bloggers covering costs and damages for claims of defamation, invasion of privacy and copyright infringement.

“To my knowledge, this is a unique product,” said Media/Pro’s chairman, Leib Dodell. “It’s an expansion of what we’ve been trying to do for the last 30 years, which is to stay abreast of developments in the media industry and make our coverage relevant to them.”

The insurance policy is being offered through the Media Bloggers Association, which will give discounts to members who take a free online course in media law developed by the association and others. Bloggers who complete the course will be asked to take a course assessment, which will be the basis for Media/Pro’s discount.

The cost will range from $540 to $3,370 per year, depending on the extent of coverage, a blogger’s risk profile and whether he or she qualifies for the discount. The standard coverage is $100,000 per incident and $300,000 total, with a deductible of $2,500.

For a limited time, bloggers who buy the insurance, which they can apply for and receive online, will be able to get free legal advice from Blaine Kimrey and his colleagues in the Chicago office of Sonnenschein Nath & Rosenthal.

“A lot of these bloggers don’t have a lot of money for legal services, but they’re performing - some of them anyway - a valuable service,” Kimrey said.

Whether bloggers will be willing to pony up the cost of BlogInsure is another question.

Kansas City blogger Cara Freie, whose blog, just-cara.tumblr.com, features her thoughts on everyday life, said the cost sounded “incredibly expensive” for the typical blogger.

“For the average person who’s talking about what their dog threw up yesterday, (a) I don’t think anyone would use it and (b) part of the fun of blogging is that if you have a computer and Internet access, it’s free,” she said.

“I mean my car insurance doesn’t cost that much, and I’m a terrible driver.”

Copyright infringement can be a problem for bloggers. The Associated Press recently sent a “takedown” letter to the Drudge Retort, a liberal parody of the well-known Drudge Report, demanding that it remove six blog entries and a comment containing quotations from AP articles of 33 to 79 words.

The letter provoked a backlash from several well-known bloggers, causing the AP to retreat and rethink its policy concerning “fair use” - the legal doctrine that permits the limited use of copyrighted material without permission for purposes such as criticism, commentary, research and news.

Although the posting of links poses no copyright risks, many bloggers wrongly believe that material on the Internet is not covered by copyright and can be used with impunity.

“It’s a risk that bloggers don’t fully appreciate because they’re not in an institutional setting where there’s training,” Dodell said.

Or as Bob Cox, the founder of the Media Bloggers Association, put it: “Even if you’re in the right, you can end up in legal trouble, and you can’t always count on pro bono assistance, or having the media or other bloggers on your side.”

Cox, who met Dodell at a conference several years ago and began talking to him about developing an insurance product for bloggers, said the need for BlogInsure was “clearly there for those who believe, as I do, that citizen media and blogging has the potential to be a powerful transformative force in society.”

“It becomes really important for bloggers not to get picked off by frivolous lawsuits or takedown notices or scary-sounding cease-and-desist letters,” he said. “Bloggers don’t always understand the law or what their rights are. And they can’t always afford to defend themselves.”

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DEFINITIONS

Blog: The term blog is a combination of two words: Web log. A blog is basically a journal that is available on the Internet.

Defamation: Injury to reputation caused by the unprivileged publication to a third party of a false statement. The maker of the statement must have done so with a level of fault amounting, at a minimum, to negligence. Libel is written defamation. Slander is spoken defamation.

Invasion of privacy: The wrongful public disclosure of private facts, even if the disclosures are true.

Copyright infringement: The unauthorized appropriation of original works of authorship. The use of excerpts for educational purposes, literary criticism or news reporting may be considered fair use and not copyright infringement.

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