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Article

Bloggers Beware

The Legal Risks of Posting Online

By Gretta Spendlove

December 1, 2009

A lawyer working for a legal defender’s office published a blog about bird-watching, photography and her clients. On her blog, she referred to her clients by their first name, a derivative of their first name or their jail identification number. Her blog was open to the public and was not password-protected. In addition to describing a judge as “Judge Clueless,” the lawyer included such descriptions of her clients as, “this stupid kid is taking the rap for his drug-dealing dirt bag of an older brother.” The lawyer was terminated from her job and her state’s bar administrator filed charges against her, claiming improper disclosure of confidential client information. The lawyer countered that her clients’ identities were adequately disguised. Bloggers can make or break reputations. They can bring in money with them or subject themselves to lawsuits or criminal prosecution. Though blogging is a way to keep communication channels open with friends, family and even strangers, bloggers should be aware of the legal implications of their online updates. Disclosing Private Information The essence of a public blog is to widely disburse facts and opinions. When those facts are private or protected, the blogger may get sued or censured. The legal defender described above had an ethical responsibility, as an attorney, to keep client information confidential. When she revealed that client information, the state bar challenged her license. Similarly, police arrested and jailed a Virginia blogger who published photographs, names and addresses of members of her local drug enforcement task force, in violation of a state law prohibiting disclosing personal information about policemen with intent to coerce, intimidate or harass. In 2006, Apple Computer sued numerous bloggers who posted information leaked prior to the release of an Apple product. Apple claimed the information constituted trade secrets. Libel and Defamation Some of the most colorful blog lawsuits involve pornography actresses suing owners of a pornography blog. In one case, a blogger posted a photograph of a woman in a sexual act and identified the woman as former Playboy model, Christi Lake. Lake sued for defamation a false statement of fact, whether written or oral, that is communicated to a third-party and injures the subject’s reputation. More prosaically, in January 2009, Butler University sued a blogger identifying himself as “Soodo Nym” for defaming two university administrators. And, in 2007, a lawyer, Edward Saadi, received $90,000 in damages from bloggers who claimed that Saadi consorted with terrorists, diverted funds from a non-profit to support terrorism and had a teenage girlfriend. False Testimonials The Federal Trade Commission recently updated its endorsement and testimonial guidelines to address blogging issues. A blog posted by a blogger who receives cash or in-kind payment to review a product may be considered an “endorsement.” Bloggers who endorse must disclose what they receive from the seller of the product or service. The FTC guidelines contain examples of how the new restrictions work, based on a consumer who buys a new, more expensive brand of dog food and then posts a blog about it, saying it makes her dog’s fur noticeably softer and shinier and so is worth the extra money. Assuming the blogger pays for the dog food herself, there is no problem. If the consumer gets the dog food for free because the store routinely tracks her purchases and its computer generates a coupon for a new bag of dog food, there is no “endorsement” under the FTC definition, and no problem. If, however, the consumer joins a networking marketing program and occasionally receives free products to review if she chooses, she is now giving an “endorsement” and must reveal that she has received payment. Defenses to Liability Bloggers who get sued for making private information public can claim that the information had already been appropriately made public anyway. Bloggers who get sued for defamation can claim that the facts they set forth are true, or, if a public figure is involved, bloggers can claim they did not have malicious intent (since there’s a less restrictive standard for defaming public figures). And bloggers who don’t reveal that they’ve been paid for their endorsements can try to wiggle through the exceptions in the FTC guidelines. Bloggers also routinely claim that any restrictions impinge on their freedom of speech, guaranteed by the First Amendment to the U.S. Constitution. The courts have defined defamation, obscenity and the divulging of some types of private information as exceptions to freedom of speech. However, judges continue to struggle with where the dividing line should be between free speech and unprotected speech. Since most lawsuits are settled by the parties before trial or are decided on procedural grounds (jurisdiction), there are many lawsuits involving bloggers but few legal decisions that define exactly what the law is in different situations. Since litigation costs are expensive, regardless of whether a blogger ultimately wins, and the law is still evolving, bloggers should stay away from private information, defamation and false testimonials, and stay tuned to the latest cases defining the dangers of blogging. Gretta is a shareholder at Durham Jones & Pinegar. She can be reached at gspendlove@djplaw.com.
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