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Published - Monday, May 19, 2008

LEGAL MATTERS: Libel danger lurks in blogs

By MICHAEL STOKER

If you read a lot of blogs (or Web journals), you’re likely to encounter some negative and even mean-spirited debate at times. With some of the badmouthing that finds its way onto many blogs and chatrooms, one wonders what sort of things the gatekeepers refuse.

Blogs offer a virtual worldwide soapbox, empowering people to share their opinions, however critical. In the past, such platforms were largely reserved for people at least somewhat versed in communications law. No more. More than 40 million blogs are on the Web today, with millions of Americans reading regularly.

If you are inclined to participate on blogs, you’d be wise to understand that many of the same laws and protections that apply to news media also apply to you, particularly where defamation is concerned.

Defamation is a false statement of fact, made negligently or with malice, that is harmful to someone’s reputation, When written, defamatory statements are “libel.” When spoken, they are “slander.”

In most cases, opinions cannot be considered defamatory. Courts will look at the statement in context to be sure it is truly opinion and not an assertion of fact disguised as opinion. For example, a court may not consider it defamatory to call someone “the worst” or “the most incompetent administrator,” but calling someone a crook or accusing someone of unethical conduct, for example, could qualify as defamation.

The rules differ somewhat depending on the person you are writing or talking about. A private figure (a neighbor, classmate or coworker, for example) only needs to prove you acted negligently. A public figure (e.g., an elected official, celebrity or business leader at the head of a public action or debate) would need to show malice — that you knowingly published false information or that you published in reckless disregard for the truth.

The Communications Decency Act of 1996 provides bloggers their best hope of immunity from defamation and other tort actions. The federal statute provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” and “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.”

Though the act is targeting Internet service providers, Web hosting companies and the like, it was enacted in part to maintain the robust nature of Internet communication. The very nature of blogging — facilitating robust communication — means bloggers may find some protections in it as well.

If you’d like to play it safely, however, understanding these rules can help:

You don’t have to name the subject person for defamation rules to apply; they need only be reasonably identifiable.

If you knowingly republish or restate someone’s defamatory statement, you are just as responsible for defamation as the original source.

Retractions can help if you learn you have conveyed defamatory statements. The retraction must be communicated as prominently as the original content.

Hyperbole, satire and parody are not considered defamation.

The statute of limitations on defamation in Wisconsin is two years.

Defamation rules apply not only to individuals but also to goods and services of a company or business.

Corporations are treated like private figures under defamation laws.

Even with a basic understanding of defamation law, however, bloggers would be wise to stay informed of new developments. As the blogosphere continues expanding rapidly, so too will the laws governing it. For now, your safest bet is to assume you are potentially liable for everything you allow to appear on your site.

Michael L. Stoker is an attorney with Johns, Flaherty & Collins, SC, in La Crosse.