WRITTEN BY DONALD R. SIMON, CEO of Simon Business Consulting
For
entrepreneurs, social media (which includes blogging) is an innovative way to
promote one’s business. Unfortunately, more
and more stories are popping up about bloggers getting in trouble for what they
post. Just recently, a $2.5
million dollar judgment was handed down against one so-called “citizen
journalist” for defamatory remarks posted on her blog. Across the nation, courts have seen a spike
in lawsuits associated with social media activities.
Like all journalists
and publishers, bloggers sometimes post information that others may not want
published. These may include observations
about a competitor’s products, services, management style, quality of work, etc. Some such remarks are being increasingly
looked at as potential violations of defamation laws, infringements of
intellectual property, or invasions of privacy.
Defamation is a
false allegation of fact that is disseminated about a person and tends to
injure that person’s reputation. The
good news is is that truth is an absolute defense to defamation, but it may
be difficult and expensive to prove. And
typically, fair comment and criticism is protected, but merely labeling a
statement as one’s “opinion” does not necessarily make it so.
Unlike a
reporter at a local newspaper, social media enthusiasts may not have the
benefit of training or resources to determine the legality of their online
activities. Further complicating
matters, most of our nation’s media laws were written for traditional
journalists and courts haven’t yet decided how those laws apply to the
blogosphere.
In a legal
action, courts will look at whether a reasonable reader could understand
the accused statement as asserting a statement of verifiable fact. This means that context is critical! When examining the blog, a court would likely
start with its general tenor, setting, and format. Next, a court would look at the specific
context and content of the blog entry, analyzing the extent of figurative or
hyperbolic language used.
But this is
what happens after the lawsuit is filed.
The best strategy for an entrepreneur is to avoid costly and
embarrassing litigation all together. Steer
clear of potentially defamatory utterances in the first place. Do not rely on information from anonymous
sources. Finally, provide the targets of
defamatory allegations an opportunity to respond.
Don’t let concerns about defamation stop you from
blogging.
Freedom of speech is the
foundation of a functioning democracy.
But before posting information, observations, or accusations
about someone’s products, services, or business, make sure that your comments
are grounded in fair and balanced observations based on personal
experiences. Don’t let blogging legal problems sidetrack you from Thinking Big!
Written by Donald R.
Simon, J.D./LL.M., is president and CEO of Simon Business Consulting, Inc., a firm providing consulting services such as business and marketing plan
development, incorporations, intellectual property advising, media relations, franchising
regulatory assistance, and presentations on the basics of starting a small
business. Send questions or comments to don@simonbizconsulting.com. This blog is provided as a source of
information and is not to be construed as legal advice or opinion, or to form
an attorney-client relationship. For
legal advice, please consult an attorney.
No comments:
Post a Comment