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Blogging and the Law

Blogging and the Law

By Reid Goldsborough

One of the more curious of the Internet’s recent brainchildren is the blog. These public online diaries have gotten a lot of attention lately for letting ordinary people air their views about personal, even private matters to anyone interested.

There’s a fair amount of self-absorption to the blogging movement, despite the fact that many blogs include commentary about the outside world of politics and popular culture. And political organizations and commercial enterprises have lately made efforts to co-op blogging to promote their causes and profits.

Still, authentic blogs can provide a fascinating view inside the mind of other people, letting you see what they’re thinking. This applies to business blogs as well, those created by companies as a new-media way of letting interested publics in on company activities and plans.
Letting loose, however, is not without its risks, and this involves more than inadvertently airing your dirty laundry. Sometimes speaking freely and publicly about other people or organizations can get you smacked with a lawsuit, First Amendment or no First Amendment. Other times, it can get you fired from your job.

To help bloggers better acquaint themselves with the legal landscape, the Electronic Frontier Foundation has just released its free “Legal Guide for Bloggers,” accessible at its Web site <>. “We want to help bloggers understand the laws that affect them so they can better protect and defend their rights,” says Kurt Opsahl, the EFF staff attorney who coordinated the project.

EFF, which is celebrating its 15-year anniversary, is one of the most recognizable voices on the Internet promoting the rights of individuals who use the medium.

Based in San Francisco, EFF receives its funding primarily from members, who pay as dues whatever amount they feel is appropriate. In exchange, members received a “warm and fuzzy feeling from defending digital freedom,” says Opsahl. Higher levels of membership may earn you a tee shirt or a hat. EFF is also supported by foundation grants.
Among other things, EFF publishes its free biweekly e-mail newsletter, EFFector, to keep readers informed of recent cases and developments involving the Internet and such issues as free speech, libel, privacy, freedom of information, copyright and fair use. These are the same issues, with regard to blogging, that its new legal guide covers.
In perusing the guide, I’d nominate the following as the best pieces of advice offered:

– You may quote short bits of what someone else has written, particularly if you’re providing commentary, without violating the person’s copyright.

– You may report facts or ideas of others (though it’s considered plagiarism to couch them as your own).

– You may use the trademarked name of a company (without the trademark symbol) unless you’re using it as the name of your own competing product or service or implying that the trademark holder endorses your content.

– In criticizing another party, truth is an absolute defense against libel, but truth can be expensive to prove legally.

– You can’t just stick an “In my opinion” in front of a verifiable statement for it to become opinion and protected against a libel charge.

– If you don’t name a person you’re criticizing but the person is still identifiable through the context of what you say, you can still be exposed to a libel charge.

– If you make up something about a company, such as finding a severed finger in the company’s chili, you can be liable for trade libel.

– You may be liable for invasion of privacy if you publish private facts about another person if they’re offensive and not a matter of public concern.

– If you get an unjustified cease-and-desist letter or e-mail message, consider exposing the party trying to squash your freedom of expression at the Chilling Effects Clearinghouse <>.

– If you criticize your boss or company in your personal blog, even if you do so off-hours using your own computer and Internet service provider, you could be fired, legally, if you’re an “at will” employee.

Opsahl emphasized that the guide isn’t a substitute for legal counsel. If you’re sued or threatened with a lawsuit, or if you feel you need a lawyer for any other purpose related to blogging, the EFF can help you find one who has the relevant expertise. If the EFF deems that yours is a case that has the potential of changing the law, it may even take it on a pro bono basis.

Reid Goldsborough is a syndicated columnist and author of the book Straight Talk About the Information Superhighway. He can be reached at [email protected] or <>.

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