If you blog, the worst of your worries shouldn’t be how many times to post, or what to write about, or whether to use WordPress or Typepad.
Your Number One concern—the question bloggers never think to ask—should be: “What if somebody sues me tomorrow for copyright infringement, defamation or invasion of privacy—what does that mean?”
Here’s what it means. It could cost you your house, your car and your future income stream.
Take it from me. Being named in a defamation suit that asks for a quarter million dollars in damages turns your world upside down, then drops the bottom out of your stomach.
That’s what happened last October. A reporter from People magazine had called, asking me to comment on a story they were writing about a lawsuit that had been filed by the former headmistress of Oprah Winfrey’s school for girls in South Africa. The plaintiff named me in the suit, along with Oprah and Huffington Post.
Nomvuyo Mzamane, the former headmistress of the Leadership Academy for Girls, cited comments to the media that Oprah made in October and November of 2007 after a dorm matron at the school was charged with assaulting and abusing students.
Mzamane named the Huffington Post and me for a blog item I wrote in November for this blog and for Huffington saying Mzamane was charged in connection with the scandal. She was not charged. I had erred. And the first I had learned about the lawsuit was when People called asking me to comment.
I responded quickly, and People used the entire statement:
“I’ve learned that in my November 7, 2007, blog post, ‘Oprah Scandal: A Lesson in Crisis Management,” and in a column I wrote for Huffington Post on November 19, 2007, I inadvertently erred by saying that the former head mistress of Oprah Winfrey’s Dream Academy was charged with a crime. I deeply regret that error and apologize to former head mistress Nomvuyo Mzamane.
“Journalists, including those on blogs, make mistakes, and if Ms. Mzamane had contacted me about that directly, I would have corrected it online — with an apology — immediately. I have not, in fact, been contacted by her or served with a lawsuit. I’m a firm believer in full compliance with the law, with the Public Relations Society of America’s Code of Ethics and with the Society of Professional Journalists’ Code of Ethics, and know that I was in compliance with all three in this case.”
I also wrote a correction for my blog. That weekend, I started contacting business associates who might be able to tell me where I could turn for help defending the suit.
I tracked down an old college friend who had worked as a libel attorney in Philadelphia, where the suit was filed. She gave me two good leads:
—She told me about a segment she had heard the day before on NPR’s “On the Media” show. It was called The Calculated Risk of Blogging. It featured Robert Cox of the Media Bloggers Association discussing all the ways bloggers can get into trouble—from threats and cease and desist letters all the way up to federal lawsuits. The Media Law Resource Center, which tracks these cases, reports that there’s been over $16 million in judgments against bloggers. I went to the group’s website and emailed Cox, asking if he could help.
—My friend also referred me to an excellent libel attorney in Philadelphia, where the suit was filed. It would cost me about $10,000 up front for the attorney’s firm to take the case. The attorney recommended I go back to the Media Bloggers Association for help.
How to join the MBA
You can join the Media Bloggers Association for only $25. Even if you stay out of trouble, the membership fee is well worth the interactive, online crash course in libel and defamation, regardless of the topic of your blog.
The course was created by the well-respected Poynter Institute, and it ends with a multiple-choice quiz that you’ll have to pass before you can join. The course will take about an hour to complete and it’s actually fun.
After I passed the test and joined MBA, Cox referred me to Ronald Coleman, an attorney with Goetz Fitzpatrick LLP, whose office is in New York, for a free telephone consultation. Coleman took the case, worked on it many hours, and kept me apprised every step along the way.
Two months later, under a settlement agreement, the Huffington Post agreed to post an apology, in exchange for the dismissal of the claims by Mzamane. She dismissed the claim against me, too, because I already had posted a correction as soon as I learned I had been sued. Neither I nor Huffington were required to pay any money.
I paid nothing for legal counsel, but would have paid my attorney’s fee if the case had gone to trial.
“Had the case gotten to trial and had you lost, you would have paid the judgment,” Cox said. “So bloggers need to consider that to defend a defamation case, it might cost $50,000 or more, even more if appealed. And the blogger might lose and have to pay the plaintiff.”
The MBA does still offer access to its legal network “but we cannot promise the sort of support you got where Ron put in quite a few hours,” Cox said. It now offers members a discount on liability insurance through a separate insurance company.
What bloggers can learn
If you blog, you might consider yourself a writer first. Or a humanitarian. Or a passionate advocate for a favorite cause or issue.
But first and foremost, you are a content publisher. The second your finger hits the “publish” button, you’re as vulnerable to a lawsuit as a major newspaper. Unlike a newspaper, however, which often has an entire team of attorneys to represent it, the blogger usually ends up alone.
I’m not an attorney and this isn’t legal advice, just a few other things you need to know:
- If you make a mistake, correct the record as soon as possible and apologize.
- Even if you know that what you’ve written is 100 percent accurate, a jury can still find you guilty.
- Anyone can file a lawsuit. Even if you win, it could take months and hundreds of thousands of dollars to defend, and you could lose your personal possessions like your house and your car.
- Conducting your research online before you blog, and then saving time by cutting and pasting content you’ve found elsewhere into your own blog, website or article—without rewriting it—can invite a lawsuit for copyright infringement. (I hosted a teleseminar several years ago with intellectual property attorney Patricia Eyres on the topic of “Legal Issues You Must Know about Writing Articles for Fee or for Free.”)
- Understand what can get you into trouble and what can’t. Make sure you know what you can say about a public person and what you can’t say about the guy who lives next door.
During my 22 years of training as a newspaper editor and reporter, I learned how to always check facts, strive for accuracy, be fair, and tell both sides of the story. Yet all the training in the world can’t prevent mistakes, or a lawsuit.
If it happened to me, it can happen to you. Know your options and be prepared.
Absolutely fabulous and most-needed post that’s so relevant to any legal issue we could face in personal or business life. In my former work as a paralegal, I saw so many painful, expensive cases of all kinds that could have been either prevented or handled simply had people been as willing to take on the challenge as swiftly and gracefully as you did. Often the most expensive costs were not judgments that had to be paid, but all the costs of the discovery process, including the time and energy we’d rather put towards our work and life.
Thanks, as always, for providing clear information, a kind heart and solid role modeling. Pat McHenry Sullivan
Very important points here about avoiding legal problems.
I have two blogs. The longest running is the Northern California Hiking Trails blog where I often quote other blogs and especially news articles. I try to stay within what I think is “reasonable use” when quoting, usually just a few sentences.
But I sometimes wonder where the line is on this, and if I can get in trouble for copyright infringement. I always link back to the source of the quote.
Wow…amazing advice. Sorry it had to come from the pain of your experience. I will review the MBA, etc. and likely join based on your story. Thanks.
Mark
Joan, this is quite an interesting story and one that hightlights the importance of purchasing liability insurance coverage or Errors and Omission coverage. Your story had a happy ending but the reality for self-employed bloggers or consultants is we live in a sue happy world. People will sue you for anything including the color of your dress.
A speaker contacted me two weeks ago because the independent contractor she hired is now suing her for unemployment benefits claiming that she was in fact an employee. The speaker did not understand the ramifications of this nor did she understand why she was being sued.
As a best practice, consultants, speakers, bloggers should purchase liablity insurance because it not a matter of did I do anything or did I really harm that person – its the cost of the legal fees, to defend your blog or service that will put you out of business.
Thanks for blogging about this and highlighting the exposures even simple things can cause.
Thank you for this post which, like all the other Publicity Hounds posts, is one of the most useful post for writers I’ve read all week. A good lesson for all of us. Thanks for sharing.
What do I think? I think that you, Joan Stewart, are amazing, thorough, and helpful to us all.
I’m in my office, standing up, and cheering for you!
I am also most grateful for this information.
MJ
Great information. “To be forwarned is to be forearmed.” Another option is to buy a pre-paid legal plan like those offered by Pre-Paid Legal Services. Plans offering unlimited access to an attorney and representation in case of a lawsuit start at $17 a month. More information: http://www.prepaidlegal.com.hub/jrambo.
Joan, thank you for sharing this with us. It must have been a difficult experience, and you were generous to tell us what you’ve learned. We need these reminders from time to time!
Wow! Thank you for sharing – both your story and info about the Media Bloggers Association. I’ll be checking it out.
Joan,
Great food for thought. We live in such a litigious society that even something as innocent as blogging can get us into legal hotwater. I am definitely going to look into the Media Blogging Association. Thanks again for the info.
What are some other resources for blogging mishaps? I had someone write horrible things about me and I wanted to know my rights.
Wow, this is scary! As you say, if even you can get caught up in this, no one is safe!
I occasionally pull some text from other sites & blogs for my own blog, but have given full credit to the source for the entirety of what I use. Is that OK??
Outstanding information. Does kind of want to make you crawl in a hole though and pull up the covers.
Great stuff – and for those readers not living in the USA, make sure you know your local law. I know some fellow Australians make the mistake of thinking our laws on copyright, libel and defamation are the same as they see portrayed in US shows such as “Boston Legal” or the like; but they’re not!
In some states of Australia, the truth is not a defence against defamation, but being clear that what you are saying is simply a personal opinion might protect you. Copyright is automatic in Australia – as soon as content is created, it is copyright; nobody needs to “register” their work. And you simply crediting the work is not sufficient in most cases – you need permission (though you can use material if you are reviewing or for satire… but the lines are blurry and in the end a court would decide)
It’s your responsibility to know the law and that’s relatively easy if you’re only publishing in one territory. But publishing globally adds a whole new wrinkle! Under what legal system should you operate?
There was a famous case in Thailand recently of an expat Aussie journalist falling foul of a “lese majeste” law (where it’s illegal to criticise the monarch) because of an article in a local newspaper. Took months of struggle and he is now home (and the law is probably going to be changed) – but it’s the kind of thing that could land many content providers in the soup.
This is such a great piece, thanks Joan for stirring up our awareness of this important aspect of having an online presence!
Absolutely on the money advice, & I quote “If you make a mistake, correct the record as soon as possible, & apologize!!!”
But some individuals just simply do not get it until they get sued for libel, slander, deformation of character etc.
Posting libel, slander, etc. on the internet, & not removing
it may be considered internet harassment etc., & may create
all kinds of other legal problems etc.!!!
VICTIMS SHOULD BY ALL MEANS SUE THESE INDIVIDUALS FOR EVERY-
THING THEY HAVE, & WILL EVER HAVE, & NEVER EVER REGRET THE
EMOTIONAL, FINANCIAL, & PHYSICAL PAIN THEY LEGALLY CAUSE
THESE BOZOS!!!
Most of us may have thought “that can never happen to me…” but if it happened to you, it can happened to anybody. Thank you for sharing your story, a cautionary tale we should keep in mind when writing online.
As always, you share excellent and helpful information, even in times of distress. I’m very glad you were able to be cleared in this case.
If I’m sued? I think it’s difficult to get sued on international grounds, except if you are being sued by someone in your own country of course. But to get sued is really going to be difficult
If you are an online journalist, blogger, or other digital media creator who has received a cease and desist letter or is facing another legal problem, please contact the Online Media Legal Network (OMLN) through http://www.omln.org to apply for pro bono or reduced fee legal assistance from the network’s affiliated attorneys.
The OMLN is an initiative of the Citizen Media Law Project (CMLP), an affiliate of Harvard Law School’s Berkman Center for Internet & Society, provides assistance, education and resources for individuals and organizations involved in online and digital media. Thes Legal Guide, available at http://www.citmedialaw.org/legal-guide, is a comprehensive resource that allows users to learn about topics such as:
• Forming a Business and Getting Online
• Dealing with Online Legal Risk
• Newsgathering and Privacy
• Access to Government Information
• Intellectual Property
• Risks Associated with Publication
Thanks for the great resources! When you’re in a pickle, like I was, it’s terrifying, specially when you don’t know where to turn.