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Blogs Raise Thorny Legal Issues

Capital Region Business Journal
March 2006

Blogs are now part of the social and corporate mainstream. But like all forms of expression, blogs can be harmful. Indeed, they can be false and defamatory. As a result, individuals and businesses should be - but are generally not - aware of the legal issues involved with the phenomenon.

The most basic definition of weblog, or "blog," is an online journal or commentary. Blogs often provide links to other blogs or Web sites, with the blogger - or author - usually providing commentary or analysis. For easy navigation, the most recent blog entry appears first on the computer screen. Many, but not all, blogs allow readers to post comments or responses to each blog entry.

To think of blogs as only a means for personal expression is anachronistic. While many blogs read like personal diaries, businesses and news organizations also are blogging. Corporate blogs offer a forum for marketing new ideas and products or provide a means of communication between management and employees. Bloggers focusing on a topic or industry may discuss trends and history. Media blogs provide an opportunity for individuals to discuss current events and news coverage, and "poliblogs" are a forum for political expression.

The structure and nature of blogs raise many challenging legal issues, including defamation, privacy and copyright law. Questions have been raised already about whether blogs should be held to the same defamation standards as traditional news media, and about the applicability of the Communications Decency Act of 1996, a powerful federal law that may provide bloggers with some immunity from defamation and other claims.

A recent Delaware case suggests that blogs may not be held to the same defamation standards as traditional news organizations. In John Doe 1 v. Cahill, the Delaware Supreme Court addressed the circumstances under which a plaintiff can "unveil" the anonymity of a blogger, forcing disclosure of his or her real identity for a lawsuit. The court set a high standard, finding that blogs are "generally not as reliable as the Wall Street Journal Online" and characterized blogs primarily as a "vehicle for the expression of opinions" and "not a source of facts or data upon which a person would rely." If followed by other courts, this decision may make successful lawsuits against bloggers more difficult.

Courts must also soon decide whether bloggers are wholly immune from defamation suits under the Communica-tions Decency Act. The law grants providers and users of an interactive computer service with immunity from lawsuits - such as defamation actions - that would hold providers and users liable with the author for defamatory material. Since a blogger can be simultaneously a provider, user, and author, the court's application of the act to blogs will be significant.

The blogosphere is not a lawless frontier and courts are slowly beginning to address the legal challenges it presents. While answers to these legal questions are arriving slowly, blogs are growing and changing the way people communicate. Until the law is clarified, bloggers should know they are potentially liable for any false and defamatory speech they author or edit.

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