Monday, August 3, 2009

Online content: What—and whom—does the law protect?

Michael Sebastian of writes about this very important issue about whether you can sue an online commenter for libel or if a tweet can get you into trouble.

It was only a matter of time before a tweet got someone sued.

Chicagoan Amanda Bonnen likely didn’t anticipate any legal repercussions when she tweeted “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay."

Realty company Horizon Group Management countered with a defamation lawsuit, claiming Bonnen "maliciously and wrongfully published the false and defamatory Tweet on Twitter, thereby allowing the Tweet to be distributed throughout the world."

Bonnen’s now deactivated account had just 20 followers at the time. Horizon is seeking $50,000 plus court costs.

The lawsuit raises murky legal waters for Twitter users. Legally, should they watch what they tweet for fear of being sued?

“The fact that you are communicating via an electronic system does not change the basic rule that you can be sued for your comments,” says defamation attorney Bruce Johnson. “The normal laws of defamation apply to tweets as to any other publications.”

The case might also establish that Twitter is a place to share opinions rather than a source of factual data. In defamation cases, courts consider the context that statements are made. Lawsuits that claim libel from an op-ed, for instance, are regularly thrown out of court.

“The courts will look to the context and see that Twitter is a place where people express their opinions about various things ... and opinions are protected by the courts,” Johnson says.

Whether or not the case makes it to court, the lawsuit should remind communicators of laws to be mindful of. Johnson provided eight legal tips.

1. You are not responsible for user-generated content on your Web site. If someone leaves scurrilous comments on your company’s external blog, you, the site owner, are not considered the publisher or speaker of that content. A court will not hold you responsible for the content of those remarks. As a result, you are safe against lawsuits—unless …

2. If you take an active role in producing third-party content, then you can be held responsible for it. A recent court case ruled that the federal law protecting Web sites (section 230 of the Communications Decency Act) does not shield Web site owners who take an active role in the comment process. For instance, if your site asks visitors to leave answers to specific questions instead of just providing them with a blank space to write comments then you can be held liable.

“The extent to which you get more and more involved with third-party content, you may risk losing that immunity [provided by section 230],” Johnson said.

3. Avoid filing lawsuits against Web sites that criticize your company. It is very difficult to sue the person who starts the Web site,, Johnson explained. For instance, Ford motor company filed a lawsuit against the owner of the Web site,, alleging he misused the company’s trademark. The court ruled against Ford Motor Co.

“The court went out of its way to basically say there is a First Amendment right to use the name of the company and to criticize the company on the part of consumers,” Johnson said.

4. The courts protect anonymity. Want an anonymous commenter’s real name? You better show the court good reason why. The courts, Johnson said, usually protect anonymity.

“There’s a whole series of court cases requiring the plaintiff to show he has good reason to get access to the name of that individual,” he explained. “The courts [in the U.S.] have created a new protection for anonymity.”

What is “good reason”? You must prove the comment has somehow broken the law.

5. Suing an anonymous commenter is probably not worth it. A company must prove to a judge it has good reason to demand an anonymous commenter’s name. That can be time consuming and expensive, Johnson said. And there's a chance the person lacks assets. So what’s the point of filing a lawsuit? Johnson asked

“You’re effectively squashing a flea with a sledge hammer,” he said. “Filing such a lawsuit is a waste of time.”

6. Sock puppetry is dangerous. What is sock puppetry? It’s when someone, maybe an employee or CEO, adopts a fake online identity and leaves a trail of comments on the Web.

John Mackey, CEO of Whole Foods, was a sock puppet. Under a phony name, he made comments online celebrating Whole Foods and denigrating Wild Oats, a company Whole Foods ultimately said it planned to purchase.

Don’t do this, Johnson insists. Beyond the brand damage Mackey inflicted when people learned of his online shenanigans, it was potentially a legal issue because Mackey made disparaging comments about publicly traded companies, according to Johnson.

7. Internal communications is protected from defamation lawsuits, because the courts consider internal communications to be the company talking to itself. So something you write in an internal publication is most likely protected against lawsuits.

8. Don’t falsely advertise in a blog. The authors of your company blog are granted First Amendment rights to spout their opinions. However, when you enter the false advertising arena you lose those protections, Johnson said.

False advertising is when a company includes a false or misleading message in an advertisement. For instance, if a shoe company publishes an ad claiming proceeds from the sales of its shoes go to charity—when in fact they do not—it is false advertising.

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