Minnesota Technology Law

Legal Liability Issues for Online Speech
Risks Associated With Weblogs, Discussion Boards and Other Online Communications

Kevin S. Brady, Attorney at Law, PLLC

Laws alone cannot secure freedom of expression; in order that every man present his views without penalty there must be spirit of tolerance in the entire population. -- Albert Einstein

FOREWORD

With the advances in today's Internet, the number of people finding a voice online has increased exponentially. Unlike previous forms of media, the pathways to Internet expression require very little investment, making them accessible to just about anyone. With the use of a PC, an Internet connection and a few minutes of spare time, a user can join a discussion group, create a page on Facebook or Twitter, post a comment on a news site or set up a weblog. However, in our ever-increasingly litigious society, there are legal risks lurking. The right to free speech, while held in high regard in the U.S., is not absolute. What you have to say can command the attention of others, in both favorable and unfavorable ways. Further complicating this issue is the fact that some members of our society, and the law, are either fearful of these new communications technologies, or simply do not know what to do with them. The law governing much of the Internet is unsettled and it's difficult to read the tea leaves to determine how the law might actually apply.

Note: It is very important for me to emphasize that the intention of this article is not to inhibit or chill your free expression. Critical thought and candid speech are absolutely essential to any free society. The thrust of this article is to help you think about some of the legal dangers that may arise in the event someone does not like what you have to say online, or what you allow others to say.

THE FIRST AMENDMENT - WHAT IT IS AND WHAT IT ISN'T

The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech. -- Justice Anthony Kennedy

The First Amendment guarantees the right to free expression. Although the language refers to "speech" and "the press," it is well established by the courts that protection extends to other forms of expression, such as art, electronic communications (including the Internet), symbols, and non-verbal communication. The right to free speech does not protect all expression, and there are some narrowly interpreted but important exceptions. Some forms of speech can be regulated, based on subject matter, or the time, place and manner in which it is expressed. An example is the government's ability to regulate commercial speech, such as the placement of billboards along highways or the ban on cigarette advertising over radio and television. Other types of speech are not protected at all, such as defamatory speech, acts of infringement, and some forms of pornography. However, it should be noted that the protection of speech under the First Amendment only applies against governmental interference. Contrary to the beliefs of some, there is no constitutionally guaranteed protection from private interference with free speech. You do not, for example, have a First Amendment right to picket on the private property of a business.

TO BE A JOURNALIST OR NOT TO BE

The right to be heard does not automatically include the right to be taken seriously. -- Hubert H. Humphrey

Journalists enjoy certain protections in a number of states - so-called "reporter's shield" laws. Under these shield laws, journalists are allowed, to a degree that varies by state, to withhold from discovery certain unpublished information and the identities of sources. However, at this time there is no shield statute at the federal level. Also varying by state is the definition of "journalist" as it applies to the shield law. In addition, journalists enjoy the protection of a higher burden of proof that is required to sustain libel actions against them by public figures. This generally requires a plaintiff to show actual malice by the journalist.

Would a blogger be afforded "journalist" status by a court? This is probably more a question of fact than of law. Matt Drudge would likely be deemed a journalist, whereas a student posting online rants about his local college professors might not. Unfortunately, there is no bright-line test to distinguish what is and what isn't. Thus, there is a real possibility that a person who posts offensive content on the Internet and ends up facing a legal challenge would do so without the added benefit of journalistic protection.

SAFE BLOGGING - WHAT YOU DON'T WANT YOUR EMPLOYER AND OTHERS TO KNOW

My definition of a free society is a society where it is safe to be unpopular. -- Adlai E. Stevenson, Jr.

There has been significant buzz recently surrounding employers' actions against employees who publish material on weblogs, discussion boards and social media sites. As mentioned above, there is no constitutional protection against a private party's ability to limit free speech. That, coupled with the fact that the vast majority of the U.S. workforce is comprised of at will employees, has resulted in numerous, some times notorious, disciplinary actions taken by employers who were not impressed by their employees' online opinions. In other words, if your employer disagrees with what you have posted on Facebook, he or she is generally free to discipline or even fire you for it.

There are some exceptions where an employee might be protected from adverse action by an employer, such as having an employment contract that includes language protecting the employee's off-work activities. Certain types of off-work speech may also be statutorily protected from employer intervention, such as union activity, political speech, etc. These protections can vary from state to state, and it is wise for an employee to understand the legal environment and be fully aware of the possible repercussions of his/her online activities.

For more information on this topic, visit the Electronic Frontier Foundation (EFF), which has a superb article about blogging anonymously, giving tips on how to keep a low profile online.

DEFAMATION LIABILITY ISSUES

It takes an enemy and a friend, working together, to hurt you to the heart. The one to slander you, and the other to get the news to you. -- Mark Twain

Defamation is generally the making of a false and harmful statement of fact about another. It is the invasion of a person's interest in reputation and good name. The defamatory statement can be spoken (slander) or written (libel). Defamation is not limited to individuals; corporations, government entities, schools, etc., are considered "legal persons," and can defame or be defamed. The legal requirements of defamation are: (1) a false statement, (2) publicized to another, and (3) that such statement is understood to be of, concerning and harming the person being defamed. If the person being defamed is a public figure, the added element of actual malice is required. Truth is an absolute defense to a claim of defamation. Thus, if A announces to others that B is a thief, and B sues A for defamation, A can avoid liability by proving that B is, in fact, a thief.

Whether a statement constitutes defamation is often a matter of context; statements that are considered opinions are not defamatory. However, don't be lulled into the idea that you will be protected by asserting that all of your statements are mere opinions. Courts will look at each statement and determine whether it would be viewed by a "reasonable person" to be an opinion or a statement of fact.

Third-party liability. In addition to the content you provide online, thought must be given to any content that others may contribute. This is particularly the case with weblogs, discussion groups, bulletin boards, and even the guestbooks found on many sites. An objectionable statement made by another person (oftentimes anonymously) can incur the wrath of the targeted party. A vivid example is the anonymously-written "article" posted on Wikipedia, alleging that former journalist John Seigenthaler Sr. had some involvement in the assassinations of John F. and Robert Kennedy. Seigenthaler was not amused. At the request of Seigenthaler, Wikipedia pulled the offending content from its site. The question is: could Wikipedia have been legally liable for the defamatory content posted by this user? The short answer is: probably not, due to a safe harbor protection in U.S. communications laws.

Section 230 of Title 47 provides: 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. (Paragraph (c)(1)) Naturally, the next question is: who or what qualifies as an "interactive computer service" as stated in this law? There have been a few key cases on point, however, they don't offer much guidance as to how Section 230 might apply to bloggers and other Internet communications. Perhaps the best example of a case involving Section 230 is Zeran v. America Online, Inc. In the Zeran case, it was held that AOL was not liable for the defamatory speech posted by an AOL user. However, the Zeran case, if anything, established that AOL, a "computer service" in the traditional sense, was protected under Section 230. No surprise there.

Computer service or publisher? Applying Section 230 to bloggers and discussion groups may depend on how the third-party statements are posted. If offensive statements are posted automatically, as would be the case with most blogs and discussion boards, the site owners would probably be protected under Section 230. If, on the other hand, the statements are submitted subject to the owner's approval, and then posted by the owner (or the owners agents - such as appointed moderators), it could be argued that the owner had tacitly endorsed the statements (thus becoming the "publisher") and are therefore not protected by Section 230. It is worth noting that there is currently no case law on this latter scenario, and it cannot be stated with any degree of certainty how a court would treat a blogger or site owner who exercised editorial control over submitted content, then went ahead and posted the offensive material anyway.

Section 230 does not provide protection for online criminal acts, infringement, or violations of electronic privacy laws.

INTELLECTUAL PROPERTY LIABILITY ISSUES

Genius borrows nobly. -- Ralph Waldo Emerson

"Borrowing" content owned by another without the owner's permission can get you into hot water, assertions by Emerson notwithstanding. Infringement liability can arise from appropriating copyrighted material without the permission of the copyright owner. This can be as simple as copying and pasting text, graphics or photos from another source onto your blog or website. Using someone's trade secrets, such as posting a merchant's confidential pricing information, is another way some website operators can get into trouble. Liability can also be incurred if you misappropriate trademarks.

Appropriating text, graphics and photos is perhaps the most common form of infringement found on websites and blogs. The practice is widespread on the Internet and the chance of getting caught is very slim. However, the fact that "everyone seems to be doing it" would provide little consolation if you're the one who was caught - the penalties for infringement are quite onerous. Finding articles, photos and other items is as easy as conducting a search. It's your responsibility to determine if a work is copyrighted, and if it is, to obtain permission for its use. There are many sites that offer free public domain photos, articles, web buttons, etc.

There are certain exceptions to infringement, most notably the concept of Fair Use. This allows certain unauthorized uses of another's copyrighted work, often for educational, non-profit and news reporting uses. However, the actual scope of Fair Use is rather nebulous, though many in the legal community believe that the scope is quite narrow. 17 U.S.C. §107 of U.S. copyright law states four general parameters that must be considered for a Fair Use analysis: (1) the purpose and character of the use, including the commercial or noncommercial nature of the use; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work that is used; and (4) the effect of the use on the potential market or value of the copyrighted work. Fair Use commonly provides for educational and non-profit entities (i.e., schools and libraries) to disseminate copyrighted material. It allows students and teachers to copy reasonable amounts of material from books and other publications. Fair Use also allows journalists to use certain portions of copyrighted works in their reporting, and can also apply in certain types of parody. There is little legal guidance as to whether a non-journalistic website or blog would enjoy similar Fair Use rights. However, keep in mind that the fact you are using the material for educational or journalistic purposes by itself does not give you carte blanche to use whatever you want. All four of the above parameters must be considered and the determination of what fits within the scope of Fair Use is complex.

For a more in-depth discussion of copyright topics, see my article addressing some common copyright myths and misconceptions.

The taking and use of proprietary trade secret information can incur liability. Publishing confidential business records, industrial processes, formulae, sales leads, or pricing information of another may lead to serious legal risks. One notorious example is the recent proliferation of sites publishing seasonal sale pricing information for retail stores. These so-called "Black Friday" sites (due to their immense popularity surrounding day-after-Thanksgiving sales) often post pricing information on the Internet prior to the commencement of the stores' sales. The information is commonly (and often unlawfully) leaked to the sites by unscrupulous store employees who are privy to the information. There is little case law on point here, but if it is determined that the data had been unlawfully acquired, the site operators could be held liable. In one case, online pricing site Fat Wallet was sued by Wal-Mart for posting Wal-Mart's confidential pricing information. Wal-Mart eventually withdrew its DMCA claim against Fat Wallet due to the negative publicity the case generated, but that doesn't necessarily mean that Wal-Mart couldn't have prevailed at trial. Indeed, the Fat Wallet case demonstrates that retailers are not afraid to vigorously protect their proprietary information in the courts. Be aware that there are also criminal statutes at the federal and state levels that address the unlawful taking of trade secret information.

WHAT YOU CAN DO TO PROTECT YOURSELF ONLINE

A man who procrastinates in his choosing will inevitably have his choice made for him by circumstance. -- Hunter S. Thompson

Oversight. Be aware of what gets posted on your site and watch for potentially offensive content. If you spot a posting with questionable content, such as threatening, defamatory, or infringing content, you must make a decision about allowing it to remain online. Keep in mind that Section 230 is not a "silver bullet" protection for all online content.

If other persons are involved with the content of your site, such as webmasters, forum moderators, etc., be sure that they fully understand and are aware of the potential legal liabilites that can arise.

If you make an accusation or assertion online, back it up with reliable facts. Provide links to the source whenever possible. If no facts are available, you should state it as an opinion.

Avoid using material that may infringe. Get the owner's permission before using the material, or find public domain content.

Consider placing a legal disclaimer on your site and link to it from EVERY page. This may not be a pressing issue for most casual bloggers, but might be a good idea if your site is highly activist in nature, involves commercial activity, or other higher-risk uses. The disclaimer should serve as a "terms of use" agreement for visitors, and can state limitations of liability, disclaimers of warranty, jurisdiction, privacy terms, etc. While it is most advisable to have this prepared by legal counsel, not everyone has the means to hire an attorney. There are templates and examples widely available on the Internet. Keep in mind that you generally get what you pay for. While a disclaimer does not absolve you of all liability (and may not absolve you of any), it can sometimes provide a defense in certain types of disputes.

If you receive a notice or compaint from an aggrieved party regarding your content - seek qualified legal advice immediately before responding. What you say in response to a complaint could be used as evidence against you in a legal proceeding.


If mankind minus one were of one opinion, then mankind is no more justified in silencing the one than the one - if he had the power - would be justified in silencing mankind. -- John Stuart Mill


DISCLAIMER: The contents of this article are intended for casual informational purposes only. None of the material in this article is intended to constitute the dispensing of legal advice, nor shall it be construed as legal advice, and you should never act or rely upon any material herein as such. If you have a legal question, you should seek the advice of a qualified practitioner.

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