Keep Your Lawyer on Speed-dial, not!

Blogging enables you to speak your mind to a worldwide audience but with that power comes some legal responsibilities. You may not destroy reputations with false statements. Nor do you have an absolute right to publish even truthful material about private individuals. An attack on reputation is defamation, and it can come in two forms, slander (spoken) and libel (written). The separate concept called invasion of privacy allows individuals to sue publishers who put them in the spotlight without good cause. Awareness will help you avoid these legal pitfalls.

A Wikipedia article lays out the basics on slander and libel which are both grounded in the ancient concept of defamation, defined by as “communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person.”

Note the two key words–false and injurious. True statements may be injurious but not defamatory — though it may cost you time and money to defend yourself against a civil lawsuit by someone or some firm that feels aggrieved. So think twice before you take a shot at anyone, and be certain of the truthfulness and provability of whatever you publish.

A Boston law firm has created an u pdated overview of slander and listed some of the cases in which this ancient concept was adjudicated in recent years. (They seem to have to do with who is not at fault in the case of a slander, i.e. the ISP or Web host who transmits the defamation but has no other role in itss utterance.)

Libel is a written slander (though in a multimedia age, I suppose a slander could be podcasted or vodcasted). The Media Law Resource Center, a non-profit comprised mainly of traditional publishers, publishes an FAQ on libel that includes the obvious, “Help! I’ve been sued for libel,” which suggests you consult a First Amendment lawyer.

Let us hope this is never your misfortune for it could cost you dearly to defend even a truthful statement if you should be sued. As Australian university professor Brian Martin says more forcefully :

“The law of defamation is supposed to protect people’s reputations from unfair attack. In practice its main effect is to hinder free speech and protect powerful people from scrutiny.”

Martin has created a “suppression of dissent” website for people fighting unfair suits. He has also written extensively on defamation in the Internet age and how technology and common sense rather than law are best suited to protect reputation.

The concept of invasion of privacy is newer and trickier in one key regard, as noted by attorney Ivan Hoffman in an online essay on the topic:

“Unlike defamation, there can be an actionable claim for invasion of privacy even if the matters disclosed are true. This is a separate cause of action from libel or slander in this regard.”

In other words, truth is no defense. If you publicize even a true detail about a private party they may be able to sue. In an age of video cell phones and instant publishing I think this is the sleeper issue. Say you’re at a at a club and you snap a picture of two people who might not ought to be together, and then you throw it up for everyone in your world to share. Is that an invasion of privacy? I suspect the law will be asked to reset the balance between what each of us can expect to remain private and the ability of anyone, anytime to publish anything.

Tom Abate
‘Cause if you ain’t Mass Media, you’re Mini Media