Avoiding Legal Pitfalls in Blogging

Media law -- the law defining the liability of the media for what they publish or broadcast -- grew up in an environment where a privileged few controlled the means of publication. Generally, these traditional publishers were held responsible for what they decided to publish, and often the publishers had relatively deep pockets to defend or pay up in the event of a successful lawsuit. The First Amendment protected free speech, but case law generally arose in the defense of well-funded media companies. In a blogging environment, each individual blogger is responsible to the law in the same way a newspaper or a television station is. Moreover, the speed at which blogs are posted, absence of third-party editors, and prevalence of "cut and paste" technology accentuate the risks in blogging.

Below are the two major legal pitfalls bloggers should avoid. This merely identifies some broad principles -- media law very much depends on the particular situation, and you should consult your own attorney for specific advice.

Libel.  Libel is a tort claim that arises when someone publishes a false statement about another person, which harms the victim's reputation.  If a blogger asserts false facts about someone, he or she can be liable for damages. The best defense to libel is, of course, telling the truth.  Alternatively, the writer can clearly distinguish factual statements from opinion -- an opinion, no matter how negative, is not libel.

Liability runs not only to the original writer of the libelous statement, but to any republisher.  Thus a blogger who repeats libel may be sued.  However, generally a blogger should not be held responsible for comments left by others on a blog.  Section 230 of the Communications Decency Act states that no provider of an "interactive computer service" will be deemed the publisher of information posted by a user.  However, editing or restating a libelous statement may cause a blogger to lose this immunity.

Copyright.  The holder of the copyright in a work (e.g. text, photo, sound recording) has the exclusive right to copy and republish that work.  Thus, the general rule is that you need permission from the copyright holder to put a copyrighted work on a blog.

Frequently, bloggers declare that the First Amendment permits them to use freely any content available for their Web sites. In fact, U.S. copyright law does provide some relief via the fair use doctrine. However, the fair use doctrine is subtle and easily misapplied. Section 107 of the Copyright Act lists four factors to be considered in determining whether a use made of a work in a particular case is fair:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

How these factors apply varies from situation to situation. If you want to rely on fair use when copying content from another source, it's a good idea to talk to an attorney or an editor experienced in the exercise of fair use. Generally, fair use protects noncommercial, educational or journalistic use of content. Thus, posting an excerpt from a written work in a blog post commenting on the work may be allowed.  On the other hand, including background music on a blog just because you like the music will require a license from the rights holders.