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The legal profession, especially libel lawyers, has a new source of work these days. It’s called blogging and podcasting. Everyday citizens, media organizations and multinational corporations alike are increasingly using blogging and podcasting to express their opinions, disseminate news and market themselves. But they are finding out that the power of these new communications tools comes with a price � legal liability. In many respects, the risks are much the same as for traditional forms of speech. But there are differences, some that increase risks and several important statutory protections that reduce risks. Based on the cases reported so far, the biggest risk is lawsuits alleging defamation and invasion of privacy. Blogs’ chatty nature and inevitably edgy opinions invite defamation lawsuits. Even worse, because anyone around the world with Internet access can read a blog, bloggers may be sued in another jurisdiction far, far away. These libel cases run the gamut. Citizen bloggers get themselves into trouble when they impulsively spew out venomous diatribes about a local political figure or child’s teacher, certainly a leading cause of lawsuits against bloggers. Bloggers’ critiques of companies have led to trade libel/product disparagement lawsuits where a few courts have arguably run afoul of the First Amendment as they have shut down bloggers they deemed incorrigible. Congress has come to the rescue, but only for content posted by third parties. Section 230 of the Communications Decency Act (CDA) gives immunity to “providers” and “users” of an “interactive computer service” to the extent that they are deemed a “publisher” of information provided by another content provider. Translated, that means that if someone else posts something on your blog, you can’t be held responsible. This immunity applies even if you made the decision to post the blog or edited its content, so long as you didn’t materially change its meaning. While no court has actually ruled that Section 230 applies to bloggers, that is the right result. This statute was intended to protect the likes of AOL and Compuserve, who were being sued for libel for what others said in their chat-rooms. Fearing that the nascent Internet revolution would come to a screeching halt, Congress stepped in. What’s a “cybersmeared” libel plaintiff to do? One option is to sue the guy who posted the nasty comment, not the deep-pocket operator of the blog or Web site. But what if the post has only the handle “Screamin’ Sally” or “Defamin’ Dick?” There is a way out, but it won’t be easy. Sue a John Doe or two. Then issue a subpoena to the entity that hosted the offending material to find out the identity of the person who posted it. Anonymous bloggers, however, have First Amendment protections, and most courts around the country have placed stringent requirements on libel plaintiffs trying to determine their identities, essentially requiring that the libel plaintiff make out a prima facie case that would survive a motion to dismiss (as a New Jersey court held) and/or summary judgment (as a Delaware court held). No Pennsylvania appellate court has directly addressed the issue, though a Philadelphia trial court adopted a fairly weak standard that merely balanced any bad faith on plaintiff’s part against the burden on the defendants’ First Amendment rights. Copyright violations are all too easy in this cut-and-paste world. Here, it’s understandably difficult, especially for citizen bloggers, to tell whether something is even copyrighted or not, let alone whether the borrowed snippet falls within the fair-use doctrine. Podcasts using third-party music and video content are especially risky. When in doubt, bloggers should try to use creative commons licensed materials or seek permission or a license directly from the copyright owner. Section 230 provides no protection to copyright lawsuits, but a different statute may help. The Digital Millennium Copyright Act (DMCA), 17 U.S.C. Section 512, gives safe-harbor immunity from copyright liability for service providers who respond quickly to notices claiming that they are hosting or linking to infringing material. Although the requirements of the DMCA are fairly technical, its safe harbor provision offers invaluable protection when those requirements are satisfied. Companies have also brought lawsuits alleging improper disclosure of trade secrets and confidential business information. Apple Computer has brought several such lawsuits. In one of them, the issue arose whether bloggers may refuse to disclose their confidential sources based on the First Amendment reporter’s privilege and/or state shield law. A California court allowed the bloggers to claim these privileges. This critical issue is a big reason that Congress has not yet enacted a federal shield law in response to the recent explosion of subpoenas served on reporters by prosecutors and litigants. Critics say that giving such reporter’s privileges to bloggers invites abuse because almost anyone can become a blogger. Proponents say that many bloggers are the journalists of the new media and engage in legitimate newsgathering and dissemination activities that deserve protection. It remains to be seen what Congress will pass. The Pennsylvania General Assembly, when it passed the Pennsylvania Shield Law in 1937 (now one of 31 states with such laws), couldn’t have known about bloggers, and it may protect only those bloggers affiliated with the mainstream media (i.e., newspapers, magazines, television stations). But the First Amendment and/or common law reporter’s privilege is broader than many of these state shield laws, and some courts have extended its protections to bloggers. Perhaps most alarming are criminal prosecutions of bloggers under harassment and intimidation laws. In one case out of Ohio, the blogger was indicted on charges of intimidation, retaliation and possession of criminal tools: her computer! The blogger was ultimately sentenced to eight years in jail and a $500 fine. In another case out of the state of Washington, a blogger was ordered to remove the allegedly offensive information and, when he refused, was judged in contempt and jailed for 111 days. That contempt conviction, however, was reversed on appeal. These prosecutions raise serious First Amendment concerns. There is also a new federal statute that criminalizes anonymous bloggers who “intend to annoy.” In 2006, President Bush signed legislation with a “preventing cyberstalking” provision that authorizes a fine and up to two years’ imprisonment for the transmission of anonymous communications over the Internet “with the intent to annoy, abuse, threaten or harass any person.” This provision is now being challenged on First Amendment grounds. There are many other ways bloggers can get themselves and their employers into legal trouble. These include trademark infringement and violations of securities laws, privacy laws and even consumer protection statutes. And one shouldn’t overlook the potentially devastating impact a corporate blogger’s admission can have in civil litigation or criminal prosecution. Just as Enron and Arthur Andersen found themselves skewered by their employees’ e-mails, so companies today can be pulled down by unauthorized or careless comments in a company or employee blog. Given all these risks and uncertainties, what are bloggers and podcasters supposed to do? Here are some suggestions. • Understand the legal risks involved. And that means getting a lawyer to explain them to you. • Create policies. Corporations need to address this issue head on by creating policies establishing who may blog, what subjects they may address, whether they will be subject to editorial supervision and control, to what extent employees’ personal blogs are covered, and whether or not a company blog will allow others to post comments directly and without screening. • Place rules and disclaimers on blogs. Blogs should require posters only to post content that is truthful, non-harassing and non-defamatory, that does not infringe on others’ copyrights or trademarks, and that does not disclose trade secrets or confidential financial or business information. Law firm or lawyer blogs should make clear that no legal advice is being provided nor any attorney client relationship created. • Look before you leap. Before posting sensitive material, review it carefully and ensure that it does not pose unreasonable risks. • Obtain pre-blog review. Just as the mainstream media gets lawyers involved in sensitive stories, companies and even individuals might want legal advice before posting potentially actionable or prejudicial statements on a blog. • Monitor the blog. Companies need to monitor their blogs and those of their employees on a regular basis. It’s what you don’t know that will hurt you. • Post corrections. If erroneous information is posted, remove the information as soon as possible and/or post a correction. Section 230 of the CDA allows bloggers to do that without incurring liability. • Discipline wayward employees. If an employee violates company policies, it’s important to discipline them to ensure compliance by all employees. Some states, however, have laws that limit what companies can do about employee speech on political and union matters. • Designate an agent for the DMCA. To take advantage of the protections of the DMCA, bloggers should register an agent to whom the statutory notifications can be sent. • Get insurance. Citizen bloggers likely have no insurance coverage, and corporate bloggers should check existing policies. A few insurers, including MediaProfessional, are specifically creating products to address these risks. • Keep on blogging and podcasting. These risks are hardly insurmountable. A good number of lawsuits have involved fringe blogger defendants � porn stars, anarchists, political and consumer activists, and angry and emotional parents. For responsible individual and corporate bloggers, the benefits of blogging easily outweigh the risks so long as appropriate precautions are taken. Robert C. Clothier is a partner in Fox Rothschild’s Philadelphia office and chairs the firm’s media, defamation and privacy law practice group.

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