A press release I saw yesterday on PRNewswire pointed out once again how pervasive a mistaken belief about U.S. law is among bloggers, website owners, and social media users. It talked about a blogger who is fighting a ruling by a Kentucky court that could make him liable for millions of dollars in damages over comments that someone else posted on his blog.
Yes, that’s right. You can be held liable in court for something that you didn’t do. And it’s not only legal, it’s becoming increasingly common. Most of us don’t run blogs with thousands of comments every day, so courts have usually held that it is reasonable to expect us to moderate and approve comments before they are left — and to exercise a reasonable standard of judgement about what is posted on a site that we control (or should control).
There are other ways to be liable for things you didn’t do. In many cases, an employer can be responsible for what an employee says or does through social media, and is almost certainly liable for copyright infringements and other actions committed by employees. Parents are liable for what minors do online. And anyone who is a member of “an informal association“, or serves as a director of a not-for-profit organization, official of a church, or elected officer of a civic or fraternal organization may be liable for actions taken by employees, volunteers or agents of the group unless the group has specifically agreed to protect them. (Before I volunteer, I make sure I am indemnified or protected.)
In April of 2011, I wrote a blog post about the 7 Costly Myths of Copyright Infringement that included this common (but completely wrong) belief:
Myth # 7: Bloggers have no legal liability for copyright infringements (videos, text, audio, etc.) posted by people who visit their blog and use the “comment” option. (“Common carriers” like Facebook or YouTube have no such liability, though they must remove the offending content when asked to do so, but individual bloggers may not have that protection. One firm of lawyers I won’t name seems to specialize in suing bloggers, and they have successfully asserted that unlike sites where the sheer volume of content makes policing it impossible, most blogs are small enough that the blogger can and must police it for copyright infringement.)
5 Things That Get Web Users Sued
Copyright infringement is the most common type of lawsuit filed against bloggers and social media users. But it’s fairly simple to avoid this kind of trouble. First of all, don’t use material you don’t have permission to use, and if you do — or someone else posts it on your site without your knowledge — take advantage of the “safe harbor” provision of the copyright law, and remove the offending content the instant you receive a DMCA Takedown Request.
Don’t even bother trying to fight a copyright or trademark infringement beef. You won’t win, because there is no real defense. Either you created it or paid for it, or you can’t use it. It’s that simple. No receipt, no written permission, no link to a Creative Commons license? You lose. The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. Who sets the value? The guy who is suing you. So just remove it and apologize.
It’s pretty easy to avoid the four things besides copyright and trademark infringement that get social media users and bloggers sued, too. Trouble is, a lot of people don’t think they’re doing anything wrong, or that the rules don’t apply to them because what they’re doing is covered by First Amendment rights or journalist shield laws.
Aside from copyright rules, if you like to post reviews on Yelp or Angie’s List, write a blog, or use social media, then there are four legal definitions you should understand before your next post.
A good definition of this can be found in the Farlex Free Dictionary, but it basically means interfering with someone’s ability to do business or encouraging someone to break a contract. It’s a very tempting “crime” when you feel as if you’ve been ripped off or sold a shoddy product. I know.
About six years ago, I had a bad experience with a Dallas flooring company called Peek’s Carpet & Tile, and seriously considered posting what I considered the “facts” about my flooring problems — and the company where I purchased the floor — on every website I could find. My lawyer Charles McGarry talked me out of it by explaining the rules of tortious interference to me — and showing me examples of cases that ordinary people had lost when they did exactly what I had planned to do and “warned other people” about doing business with a firm that they were unhappy about.
To avoid losing a suit for tortious interference, be careful what you say. Opinions are (almost always) protected speech. “I didn’t like the food at Deb’s Diner, and won’t be going back” is an opinion, and you can say that. Saying, “I wish I’d bought my floor from a company other than Peek’s Carpet and Tile” is also an opinion.
Saying, “Don’t eat at Deb’s Diner — the food will make you sick” or “If you live in Lake Highlands, don’t hire Peek’s Carpet and Tile to install a new floor for you” on the other hand is illegal. There are exceptions, of course. If you truly are an expert — a health inspector acting in your official capacity after inspecting a restaurant, for example — go ahead and state the “facts”. Otherwise, stick to opinions. You’d be surprised at how expensive and difficult it is to prove a “fact” in court.
Product disparagement and the slander of title are claims that occur when a person “makes a false statement about the title to goods or the quality of goods being offered for sale by a person or corporation, and as a result, another person or persons refrain from dealing with the injured party.”
This includes the review you wrote on Yelp, the rant you posted on Facebook, and the comment you made on your blog. Once rare, these lawsuits are increasingly common as business people find themselves losing customers thanks to online reviews that they believe are false. It’s hard to fight if you’re the blogger or webmaster being sued – and it’s hard to win if you’re the business owner suing. And it’s expensive and time consuming for both sides.
Product disparagement is a tricky question for a lot of bloggers. Words count here, and so does context. If you write product reviews, make sure your policies and procedures on how you conduct them are consistent, and that the rules are applied fairly. There are lawyers and business owners out there who will sue in order to try and get negative stuff pulled from the web, even though they don’t have grounds for a winning case. It’s so common there’s even a name for it: a SLAPP (strategic lawsuit against public participation).
Rock star Courtney Love, a mommy blogger in Texas, and a homeowner in San Jose are among the people who lost high-profile product disparagement cases last year, each being ordered to pay damages to small business owners who felt that they were targeted by blog posts. Talk to your own legal counsel about this if you’re uncertain. I did, and you won’t find product reviews on this blog.
There are different rules for defamation depending on whether the person being defamed is a public or a private individual, and the rules vary from place to place, but in general defamation is the broadest category of potential legal liability for bloggers and website owners.
Here’s the definition of defamation from my copy of the Merriam Webster Dictionary: Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.
Unlike other things that can get you sued, defamation may be a criminal charge in some places if it crosses the line into cyber-bullying or hate speech, or even if it uses the traditional “fighting words” or discloses information that a reasonable person would believe caused harm to the victim. Defamation includes both written statements (known as libel), spoken statements (called slander), and videos, graphics or photographs.
This is what gets a lot of bloggers in trouble, and it’s what has Nik Richie facing millions of dollars in potential payouts to plaintiffs. His site lets users post photos of others, with comments about the people and the situation. A lot of those comments aren’t the sort that I am willing to repeat here — and a lot of the photos aren’t the sort that people would want spread all over the Internet, since they were taken when the person was drunk or otherwise not at their best. You can read more about Nik Richie’s situation at the bottom of this blog post.
One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter. For instance, you might think that what you posted was endearing, funny, cute, and inoffensive. But if the outcome is that the person is unemployable, or suffers negative consequences, it can be defamatory. For example, a court in Nova Scotia yesterday handed down a $425,000 judgement against a U.S. blogger that the court found defamed the owners of a fishing lodge by “incorrectly linking the lodge to a Louisiana political scandal.”
Right of Publicity
The right of publicity is the legal theory that prevents the unauthorized commercial use of an individual’s name, likeness, or “other recognizable aspects of someone’s persona”. The online legal library at Cornel University Law School explains this in detail as does the Right of Publicity website.
Until recently, the right of publicity was so obscure that a lot of lawyers hadn’t even heard of it. Recently, though it’s become a favorite tool for litigation.
The right of publicity is what can bite you if you’re one of those people who posts every photo you take on Facebook, with no regard to the preferences or feelings of other people in the photo, or when you use material that is strongly identified with a person. It’s why all those “tribute” bands are “tributes” instead of knock-offs: words matter, and how you present someone else’s intellectual property matters.
So get permission before you publish long excerpts from someone else’s blog (or, heaven forbid, pick up and reblog the whole thing as a “guest post” when they were never asked if they were willing to be a guest blogger on your site), and especially get permission before you publish photos of any identifiable person (that means someone who could be identified in a photo, whether you know who they are or not) without their permission.
A word about celebrities, politicians, and other public figures here: yes, you can take their photo, and yes you can probably use it. But it depends on the context. You can’t say anything that implies that they endorse you, know you personally, or use your product without their very specific permission. Where you see them matters, too.
A word of caution about using photos you find on Flickr or PhotoBucket. The photographer may have granted a Creative Commons License to use the image, but the photographer might or might not have obtained the permission of all of the identifiable people in the photo.
Context is important, too. If you pick up a generic photo of a bell man or hotel desk clerk, the individual pictured could make a claim for defamation (if it might be construed by the reader that the pictured individual provided bad service because the blog post is about a bad hotel experience) or a right of publicity (if it might be construed that the pictured individual is endorsing your product or service).
Some sites now include a disclaimer with their photo credits on Creative Commons photos. Ask your attorney about this if you use a lot of these photos.
Ignorance of the Law Isn’t Always Bliss
Most web users are blissfully ignorant of these (and other) legal pitfalls until a letter arrives from a lawyer. When that happens, it’s easy to climb up on your high horse and claim that what was written was protected by the First Amendment to the U.S. Constitution.
It might be, or it might not be. A lot of people are surprised at what the First Amendment doesn’t protect. The question is, can you afford to prove it in court?
My friend Shawn E. Tuma, an excellent litigation attorney with a special interest in cases like these (I recommend him if you find yourself on either side of any lawsuit), once put it like this – and I will apologize in advance to Shawn if I misquote him.
“I’d love to be the lawyer who sets a precedent on things like this – breaking new ground to defend the rights of Internet users, or protect a business that has been targeted unfairly and maliciously. Both are worth fighting for.
“But what I tell my clients is to ask themselves seriously if they want to be the person who pays for it. If they do, I’m ready. But most just want to avoid trouble. So settling, removing the offending content, and avoiding the causes for the trouble in the first place by learning (and following) the rules is usually the best idea.”
And that brings us back to Nik Richie, the blogger who decided to fight – and appears to be writing a book to help pay for it. Richie’s site makes no pretense to be anything other than what it is: a no-holds-barred place where people are encouraged to post “candid” photos and snarky comments about them. So most observers figured that it wasn’t a question of if he’d get sued, just when, and whether or not he’d wind up paying damages. (Forbes wrote an article a couple of years ago that seems to imply that he can well afford to pay damages.)
Richie’s press release is posted here exactly as it appeared on PRNewswire. Republishing it does not mean that I think that the assertions made in the release are accurate, or that I believe that Richie will prevail in the appeal on his case. I’m including it here for one reason only: to point out one of the reasons why people keep getting sued.
People keep getting sued because — like Richie — they believe that the same rules apply to Facebook and to their own website or blog.
They don’t. Back when dial-up access to computer networks was a brand new technology, Congress thought that Internet companies needed some special protections. So rules were written that defined ISPs and web companies (back then it was AOL, CompuServe, and PLINK) as “common carriers”, just like AT&T and the other telephone companies.
It had been decided decades before that you couldn’t sue Ma Bell because somebody said something defamatory or revealed trade secrets on a phone call because the “common carrier” was just providing a link between people.
And that’s what Facebook is: a link between people.
Is this blog a “common carrier”? Not according to any court decision I’ve ever read, and not according to how I read the communications law that defined common carriers in the first place.
I haven’t read what Richie’s lawyers are claiming in their appeal, but press reports make it seem that this is exactly what he is hoping to prove: that his blog is a common carrier and protected from what others post on his site, just like Facebook. Pay his blog a visit (the press release below is riddled with links), and decide for yourself what you think about applying broad protections to sites like this.
If he wins, it may change the rules for us all – but in the meantime, unless you want to call my friend Sean and pay him lots and lots of money to set a legal precedent, you might want to think twice about committing any of the most common acts that get people like Richie sued.
It seems that Richie got a book deal out of the lawsuit against him. Wonder if he’ll earn enough from the book to pay his legal fees? My guess is that he won’t. It’s just not a risk I’m willing to take personally. How about you?
Internet Blogger Nik Richie Announces Book Deal
LOS ANGELES, Feb. 1, 2012 /PRNewswire/ — Infamous blogger of thedirty.com Nik Richie, has inked a deal with James McGinniss at McGinniss Associates for his memoir, ALWAYS JUDGE A BOOK BY ITS COVER, the story of how one man rose from an office cubicle to becoming the internet’s Larry Flynt. The headline making Richie is also embroiled in a ground breaking legal battle.
When people think of Kentucky, they think of fast horses and fine bourbon, not cutting-edge Internet cases. But what’s happening in a shocking legal battle currently pending in a Kentucky federal court could not only shut down www.thedirty.com, it may potentially have a devastating impact on thousands of U.S.-based websites, especially social networking and blogging sites that allow users to post comments and share ideas.
The case involves a lawsuit filed against Nik Richie by a Kentucky woman named Sarah Jones who was featured in several postings on www.thedirty.com in late 2009. In her lawsuit, Ms. Jones claims that these posts were defamatory and she’s asking the court to award her millions of dollars in damages against Nik Richie for “allowing” these posts to be published on his site.
Generally speaking, federal law strictly prohibits actions against website owners for material posted on their sites by third parties. Since this law was enacted in 1996, literally hundreds of courts have consistently ruled that websites which allow third parties to post content — like Facebook, Twitter, YouTube and Wikipedia – cannot be sued for false or defamatory content posted by a third party user of the site.
In the Kentucky case, the judge reached exactly the opposite conclusion, finding that Nik Richie could be held personally responsible for every single post submitted to his website. This ruling has the potential to drastically affect any and all websites that allow users to post comments – including sites such as Facebook — by exposing website owners to unlimited liability for material posted by third parties.
Experts in this area have been quick to condemn the Kentucky court’s decision, calling it “a troubling and probably lawless ruling.” The case will be immediately appealed to the Sixth Circuit Court of Appeals, which has authority over courts in Michigan, Ohio, Kentucky and Tennessee. The issues involved are so important, the case may eventually end up being heard by the United States Supreme Court.
UPDATE: The trial was held between January 22 and 24, 2013, in Covington, Kentucky. After deliberating for a day, the jury remained deadlocked on the issue of whether the posts about Sarah Jones having STDs and having slept with Cincinnati Bengals players were substantially false. On the issue of whether Richie acted in malice by posting the submissions, the jury decided unanimously in favor of Richie. Since the jury was unable to agree unanimously on the first issue, the judge declared a mistrial.
A retrial was held on July 8, 2013. Federal Judge William Bertelsmann declined to reconsider a request by Richie’s attorneys that the website is protected under the Communications Decency Act (CDA). On July 11, 2013, after a two-day trial and 10-11 hours of deliberations, a jury of 8 women and 2 men in Covington, Kentucky delivered a unanimous verdict in favor of Jones’ claim of defamation. The jury awarded Jones $38,000 in compensatory damages and $300,000 in punitive damages for a total award of $338,000.
Richie’s attorney vowed to appeal the jury’s verdict.