By Michael Sebastian
michaels@ragan.com
Wonder whether you can sue an online commenter for libel or if you can be sued for anonymous comments on your blog? We have the answers
An anonymous commenter on your company’s external blog attacks the CEO of another organization. That CEO calls the comment libel and threatens a lawsuit. Your executives want your head on a platter. After all, you, the communicator, started the blog.
You tell everyone not to worry. Your company is probably not responsible for that comment.
“[Federal law] says … your Web site cannot be held liable for user-generated content,” attorney Bruce Johnson, a media privacy and law expert, explained. “You are not deemed to be the publisher or speaker of that content.”
Johnson, a partner in the Seattle office of Davis Wright Tremaine, spoke to Ragan.com in October at Ragan’s Corporate Communications in a Web 2.0 World conference. He provided eight legal tips for communicators.
1. You are not responsible for user-generated content on your Web site. If someone leaves scurrilous comments on your company’s external blog, you, the site owner, are not considered the publisher or speaker of that content. A court will not hold you responsible for the content of those remarks. As a result, you are safe against lawsuits—unless …
2. If you take an active role in producing third-party content, then you can be held responsible for it. A recent court case ruled that the federal law protecting Web sites (section 230 of the Communications Decency Act) does not shield Web site owners who take an active role in the comment process. For instance, if your site asks visitors to leave answers to specific questions instead of just providing them with a blank space to write comments then you can be held liable.
Bruce Johnson tells CEO Mark Ragan how—and if—companies should respond to rogue Web sites.
“The extent to which you get more and more involved with third-party content, you may risk losing that immunity [provided by section 230],” Johnson said.
3. Avoid filing lawsuits against Web sites that criticize your company. It is very difficult to sue the person who starts the Web site, Yourcompanysucks.com, Johnson explained. For instance, Ford motor company filed a lawsuit against the owner of the Web site, Fordsucks.com, alleging he misused the company’s trademark. The court ruled against Ford.
“The court went out of its way to basically say there is a First Amendment right to use the name of the company and to criticize the company on the part of consumers,” Johnson said.
4. The courts protect anonymity. Want an anonymous commenter’s real name? You better show the court good reason why. The courts, Johnson said, usually protect anonymity.
“There’s a whole series of court cases requiring the plaintiff to show he has good reason to get access to the name of that individual,” he explained. “The courts [in the U.S.] have created a new protection for anonymity.”
What is “good reason”? You must prove the comment has somehow broken the law.
5. Suing an anonymous commenter is probably not worth it. A company must prove to a judge it has good reason to demand an anonymous commenter’s name. That can be time consuming and expensive, Johnson said. And there's a chance the person lacks assets. So what’s the point of filing a lawsuit? Johnson asked
“You’re effectively squashing a flea with a sledge hammer,” he said. “Filing such a lawsuit is a waste of time.”
6. Sock puppetry is dangerous. What is sock puppetry? It’s when someone, maybe an employee or CEO, adopts a fake online identity and leaves a trail of comments on the Web.
John Mackey, CEO of Whole Foods, was a sock puppet. Under a phony name, he made comments online celebrating Whole Foods and denigrating Wild Oats, a company Whole Foods ultimately said it planned to purchase.
Don’t do this, Johnson insists. Beyond the brand damage Mackey inflicted when people learned of his online shenanigans, it was potentially a legal issue because Mackey made disparaging comments about publicly-traded companies, according to Johnson.
7. Internal communications is protected from defamation lawsuits, because the courts consider internal communications to be the company talking to itself. So something you write in an internal publication is most likely protected against lawsuits.
8. Don’t falsely advertise in a blog. The authors of your company blog are granted First Amendment rights to spout their opinions. However, when you enter the false advertising arena you lose those protections, Johnson said.
False advertising is when a company includes a false or misleading message in an advertisement. For instance, if a shoe company publishes an ad claiming proceeds from the sales of its shoes go to charity—when in fact they do not—it is false advertising.
That said, blogs have not been subject to this false advertising liability—yet. Why? “Technology is moving ahead of the law,” Johnson said.
Article comments:
Tuesday, December 09, 2008 10:28:25 AM by Tim S
Posters on blogs and blog owners are often protected by "Anti-SLAPP laws" (see Google for definition) being enacted by a number of states - where entities can't sue to quash critisism and can be required to pay the legal fees of those they attempt to sue.
Tuesday, December 09, 2008 10:30:33 AM by Matt
Thanks. Very valuable stuff. People in my company are nervous about the Web in a way that regularly surprises me. This type of information can help calm them.
Tuesday, December 09, 2008 11:04:43 AM by Amanda Vega
We have an attorney client that specializes in this type of thing and also guide us as a social media agency (for over 15 years) to ensure that we aren't putting ourselves or our clients in jeopardy. He also has presentations on this that he can give other firms (shameless plug, I know.) I personally like #3, as you see many clients, especially large brands try to do this. If you try and remove all the bad stuff, then you aren't harnessing the power or opportunity to actually LISTEN to your customers and change accordingly. Also, with regard to liability, there is also something to be said for the liability of your company for what your employees do - so that's another story to be told.
As for sock puppeting - I'm not completely in agreement. Social media participants and zealots are OK with hired hands. They just want it to be transparent. And for the times you use personas to help spread the word - there is value and need for that. Specifically, we have some clients where we are using fake names and pictures of model children for profiles to help with social media response marketing for some clients. The reason being you never want to post your real name/kids pics just in case there are psychos out there stalking you. However you have to note that the person behind the profile is the same identity in essence. If "kate smith" is defined as a mom of three, then the lady behind the name is indeed a mom of three. Another interesting follow-up may be the new laws that are floating around the UK to this regard. Last we heard, it's actually illegal to have a persona!
Amanda Vega
http://www.amandavega.com
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