Exclusive: Bloggers, Protect Thyself (From Libel Lawsuits) And The Future Of Journalism


One of the biggest, though least-heard criticisms of lean, online-only newsrooms is that these companies don’t have deep enough pockets to protect its staff from lawsuits. If you’re investigating corruption and get threatened with a libel suit, how can a tiny, 10 or 20-person newsroom compete with a company that may have top lawyers on retainer?

Incredibly, the Internet is actually a pretty safe place for bloggers and online journalists to speak out.

We spoke with law professor Eric Goldman, who teaches at the Santa Clara University School of Law, about things you might not know about blogging safely.

An excerpt:

“Personally, every time I put a blog post up, I’m betting my house. I don’t have a separate corporate form [like an LLC]. It really is a stressful moment every time I hit publish, thinking, ‘Is this the post that’s going to cost me my house?'”

The rest of the interview, after the jump.

If you’re going it alone, check your homeowners’ insurance policy.
“It turns out that many homeowners insurance policies have coverage for things like defamation liability. Most people aren’t aware of it. The problem for professional journalists is that it may not cover people involved in professional organizations. It would cover a blogger that never earns a dime but for people running professional organizations.

Adsense is an open question, one we are keenly interested in. What does it mean to run a commercial operation, sufficient to knock yourself out of the default coverage most people have? I think we will eventually have an issue on that. The insurer will say, ‘You had Adsense on your site,’ and [the site owner] will say, “Yeah, I did have Adsense, but I’m not running a commercial operation. There is revenue, but it’s no different than some kind of hobby.”

Remember precedent. 423-U.S.C. §230, part of the Communications Decency Act, means that web site operators can’t be held liable for the content published by its users, even if the operator is exercising editorial control over which content gets published. (Historic precedent: Compuserve was sued for defamatory content posted on one of its forums and found not liable for the content.)

“What this means is that if a professional blogger or professional journalist is republishing online third-party content, they’re not liable for that publication. When I get e-mail from somebody and they tell me it’s fine to post it on my blog, if I cut and paste that e-mail on my blog, and it has defamatory content, I believe I’m protected under Section 230 [even though I made the choice to post the content]. This is totally counterintuitive, but [Congress] wanted to protect those editorial judgment calls.

“There was a 9th circuit case on this point [Batzel vs. Cremers] where somebody reposted an e-mail online and the court said we’re not sure if Section 230 applies. If the submitter had sent it with the expectation that it would go public, then Section 230 applies. If it was intended to be private, then it would not apply.” (More on Section 230 from the EFF.)

Don’t get SLAPPed.
“Anti-SLAPP [Strategic Lawsuits Against Public Participation] laws are another friend of the professional blogger because they help provide some cover for someone who decides to bring a lawsuit that was not based on legitimate concerns…if the judge decides the lawsuit was a SLAPP, the person who was sued gets their attorney’s fees covered.

“About 30 states have adopted anti-SLAPP laws, and they’re not uniform. Some are narrowly drafted. They protect only people who are trying to redress government wrongs. In other states, they’re drafted a little more broadly. In California, any publication that relates to some matter of public concern might be eligible for anti-SLAPP protection.

“A blogger was posting criticisms of a publicly traded company; the blogger was sued and the case was dismissed on anti-SLAPP laws. [GTX Vs. Left]

“Will there be investigative journalism – will people be able to fight for their rights online? People may not really be at real risk when they tackle controversial subjects.

“Anti-SLAPP laws vary from state to state, but there’s recently been a proposal to introduce a federal anti-SLAPP law. [H.R.4364: in committee.]

“This may help some of the bloggers or other online content publishers feel they can stand up to the bullies. And if anyone does mess with them, then the person that messes with them will see significant pain.”

By the way: If it is not obvious, this post does not constitute legal advice. Check with a real lawyer (like the guy we talked to!) if you have actual, legal questions.