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FEATURE: Beware – blogging can damage your wealth

Posted by: Creativematch Graduate Recruitment | Date added: Wed 02 May 2007

For those of you who thought blogging was all about free speech – think again. Having your say could cost you thousands in libel damages or other fines if you flout publication laws. Creativematch gets the top advice from two media law experts Amali de Silva, senior litigation solicitor at Wiggin LLP and Tahir Basheer of Sheridans media and entertainment law firm, to help you hold court not end up in one!…

Blogging offers us all an opportunity to have our say – but how far can we go without ending up in the soup?

“When writing a blog, it is important to remember that the law does apply to the internet,” says Amali de Silva, senior litigation solicitor at Wiggins. “A blog or chat room posting will be treated as a "publication" in the same way as a newspaper or magazine article,” she says. That’s all very well, but when writing from the seemingly safe shelter of one’s blogging bunker, it’s easy to get carried away and even end up displaying signs of ‘blogging rage’. Tahir Basheer, Partner at Media specialist law firm Sheridans, counsels restraint: “Bloggers thoughts are often published quickly and sometimes in anger or frustration and without the safeguard of an editorial vetting process.  But, internet sites are not exempt from libel laws and in a significant ruling in 2002, the Australian High Court ruled that mining magnate Joseph Gutnick could sue publisher Dow Jones under Australian law for alleged libel online. The judge deemed that the web was no different from newspapers or television. 

“Under UK law claims for defamation can be brought against the blogger or publishers of the website blog, and in the UK, internet service providers are coming under increasing pressure to close sites containing defamatory allegations,” he explains. Last year, Michael Keith Smith successfully sued a woman who, using an alias, made defamatory allegations about him in an internet chat room. He was awarded £10,000 in damages and a restraining order was made banning her from abusing him on any further website.

And you can’t side-step the law through anonymity de Silva explains: “Don't assume that it doesn't matter what you say because you use a pseudonym or post anonymously - you can usually be traced. Terry Smith and his firm, Collins Stewart, sued Jeremy Benjamin over false allegations posted on a website under an invented name. The court ordered the website to reveal the details they had for that web name, which included the identification number of Mr Benjamin's computer and his email address.

“The case settled before trial with Mr Benjamin admitting making the false statements and paying substantial damages and costs to Mr Smith and Collins Stewart.” With that in mind here are some invaluable tips on how to have your say without having to pay from our legal experts:

1.       Defamation and libel: What is the difference between defamation and libel? A defamatory statement is one made by A to B about C which lowers C's reputation in the minds of "right-thinking people" ie. a jury in a libel case. A defamatory statement is only libellous if it is not true. If a defamatory statement is true, it can be published. Even if you can't prove the truth of an allegation, there are other defences to a libel claim which may apply. (Amali de Silva)

2.       Who can sue for libel? Any living individual - individuals do not have to prove that their reputations have been damaged or that they have suffered distress, this is assumed to be the case. Companies can sue for damage to their business reputation, but not for hurt feelings or distress. Government bodies cannot sue, but individual officers may if defamatory statements are made about them personally. (Amali de Silva) 

3.       Who can be sued for the contents of a blog? The actual author will always be liable for any content he posts. With regard to the web site host and/or and ISP, their liability will depend on the extent to which they are perceived to exercise editorial control over the content of the blog. If a website host has commissioned a blog, or it is created by an employee of the website host in the course of his employment, the website host is likely to be considered the "publisher" of the blog and therefore liable for any defamatory comment. Even if this is not the case, if an ISP or website host seeks to monitor content, for example by stating in their terms and conditions that they reserve the right to review and remove inappropriate material, they could be deemed to be performing an editorial function and hence held liable as a "publisher" of the defamatory content. This would be in addition to, not instead of, the author. Even if the ISP  or web site host does not exercise such editorial control they are still under an obligation to act swiftly  if  a third party makes a complaint about content hosted on their site. It is therefore essential that proper procedures are implemented to ensure that any complaints are investigated immediately and that any unlawful content is removed  when brought to their attention.   If not, an ISP or web site host could be held liable for defamatory content in respect of which they have received complaints but have taken no action over. (Amali de Silva)   

4.       Can you be sued if you don't name the person being defamed? Yes, if the group is small enough for the individuals to be identifiable. For example, an allegation that a regional CID officer had committed an offence without naming the officer entitled all 12 CID officers in the region to successfully sue. Also, a person could be defamed by implication even if they are not named if the target audience is people with sufficient specialised knowledge to understand the allegation being made. This is particularly the case with blogs targeted at a specific industry or interest group. (Amali de Silva).

 

5.       Observe overseas libel laws: Bloggers should also be aware that the blog may be subject to a range of differing libel laws in other countries around the world that can access the website. In August 2006 a Chinese university professor sued Blogcn.com, one of China’s largest blog websites, after defamatory remarks were written about him by a former student.  The professor altered Blogcn.com to the remarks and requested that they were taken down.  Blogcn.com refused to do this and the professor successfully sued the company. (Tahir Basheer)

6.       Rumours/gossip - simply putting "allegedly" in front of a defamatory statement or relying on the fact that you are reporting what someone else has said will not usually be a good defence to a libel claim. If you report defamatory remarks made by A about B, you will need to be able to defend the statement as if it is one you made yourself. (Amali de Silva).

7.   Opinions - the "fair comment" defence protects honestly held opinions on matters of public interest, however extreme those opinions may be, but they must be based on accurate facts which are either set out in the blog or generally known. For example, if a blogger expresses the view that a person is corrupt because they took a payment which they should not have, if that person did not in fact take the payment the comment will not be protected by law. (Amali de Silva).

8.   Malice - all the qualified privilege defences and the fair comment defence will fail if the blogger can be shown to have been "malicious" in publishing the allegations. In this context, "malice" bears a very narrow meaning, namely that the blogger has to be shown to have known the allegations were false, or was reckless or uncaring as to the truth of the allegations, when publishing them. (Amali de Silva). Private information - be careful if you are posting private information about individuals, particularly in relation to their health or sexual life.

Unless it is already in the public domain or they have agreed to the publication, you may be liable to be sued. Sir Martin Sorrell sued two former colleagues for libel and invasion of privacy over allegations made in an anonymous blog.

The defendants denied posting or authorising the allegations made on the blog and the case hinged on complex (and strongly challenged) computer evidence put forward on behalf of Sir Martin. The case settled before trial with the defendants paying Sir Martin £120,000 (which included £20,000 in respect of the privacy claim) and contributing £50,000 towards his legal costs. Claims of this magnitude aren't uncommon in libel/privacy cases. (Amali de Silva).

Confidentiality: Blogs are public and can be accessed very easily by anyone with access to the internet. Care should be taken to keep names and places of work confidential so people, be it friends or colleagues, are not easily identifiable.

Posting information which a blogger ought to know is confidential or where the blogger knows that the information was provided to them in breach of confidence could open the blogger up to an action for breach of confidence.  A legal opinion prepared by Sir Elton John’s barrister was posted on a gossip website operated by Countess Joulebine.  Countess Joulebine knew the opinion had been posted on the website - a hyperlink was set up on her homepage to the opinion. 

Sir Elton brought an action against Countess Joulebine for breach of confidence on the grounds that the information was obviously confidential and that she should have known that there was a risk the information was given to her in breach of confidence. 

The case was judged summarily and the court concluded that the Defendant had no real prospect of success in defending the case. (Tahir Basheer) Copyright - copyright law is very complex and care needs to be taken when reproducing someone else's copyright material in a blog without their permission. A copyright infringement claim can only be brought if the part of the copyright work reproduced is "substantial", but in judging this quality as well as quantity is important. Even a short extract could be considered "substantial" if it contains the core of the copyright work. There are also certain exemptions, such as fair dealing for the purpose of criticism and review, which allow reproduction of "substantial" parts without the copyright owner's permission as long as a sufficient acknowledgment is given. (Amali de Silva). Copyright - Bloggers may want to include images or music within a blog and should therefore be aware that doing so may lead to an infringement of copyright action.

In the UK, copyright exists in every original literary work, that is to say a work which is written, sung or spoken, every original musical work i.e. a piece of music and every original artistic work such as a drawing or photograph.  Copyright also exists in a sound recording such as a recording of spoken word, or a recording of a song. The copyright is owned by the individual who created the original work or to whom the copyright has been transferred.  A blogger can upload their own original work into their blog as the copyright in that work belongs to the blogger.  However, if a blogger uploads the work of another individual they could face an infringement of copyright action unless they have obtained permission or a licence to incorporate that work into their blog.  There is only limited legal guidance in relation to the inclusion of hypertext links within blogs.  A blogger would be advised to adopt a belt and braces approach and make clear within the blog where any link is leading to, to ensure that the inclusion of the link does not amount to an infringement of copyright.  In addition, if the blog is produced by the blogger whilst at work all original work that the blogger produces could belong to the company/employer.  (Tahir Basheer)

12.   Illegal Content - Bloggers should monitor the content of their blogs so as to avoid uploading any content which is illegal. For example it is illegal to incite others to commit a criminal act or publish, display or disseminate information or any visible representation where it is intended or likely to stir up racial or religious hatred.  Other illegal content could be information which is classified as obscene or child pornography.  Material is considered obscene if its effect is likely to “deprave or corrupt” those who are likely to read, hear or see it.  The glamorisation of drug use for instance has been held to be obscene by the UK courts. If a blogger uploads any information which is considered illegal they could face criminal prosecution. A blogger should again remember that what may not be considered illegal information in the UK, may lead to prosecution in another country where the blog is accessible. (Tahir Basheer)

13.   Inappropriate Content - Bloggers should again be aware that a blog is accessible by anyone who has access to the internet, this includes minors.  Bloggers would therefore be advised to exercise a degree of caution in relation to the information uploaded or posted on the blog.  There is no official code of conduct for bloggers at present but individuals such as Tim O’Reilly have suggested formalising blogging behaviour by adopting a blogging code of conduct, whereby amongst other things blogs should contain a warning if they contain crude language thereby alerting the reader and giving them the opportunity to decide whether they do in fact want to read on.  O’Reilly also suggests in his draft code that in abiding by the code bloggers “will not  post unacceptable content”.  Unacceptable content is defined as “anything included or linked to [or] that is being used to abuse, harass, stalk or threaten others”.  (Tahir Basheer)  

14.   Reporting court proceedings - Certain reports attract absolute privilege. No matter how defamatory they are, no one can sue for defamation over them. A full list is set out in the Defamation Act 1996 and includes reports of court proceedings in the UK and some international courts if the reports are fair and accurate and contemporaneous. Testimony of witnesses must not be represented as fact but as evidence, and both sides of the argument must be reported. (Amali de Silva).

15.   Reporting public meetings - other fair and accurate reports may be protected by qualified privilege either "without explanation or contradiction" (eg. public proceedings or a legislature or court anywhere in the world, whether contemporaneous or not) or "subject to explanation or contradiction" (eg. public proceedings of local authorities, or government commissions or tribunals). The second category will not be privileged if you were asked to publish a reasonable letter or statement by way of explanation or contribution and refused or neglected to do so, or did had done so in an inadequate manner. Full lists of the two categories are set out in the 1996 Act. (Amali de Silva). 16.   Public interest qualified privilege - in the case of Reynolds v Times Newspapers 1998, the House of Lords extended categories of qualified privilege protection open to the media to cover reports on a matter of public interest. To benefit from this defence you must show that your article was researched, written and published responsibly. There is some very useful guidance in the Reynolds case as to what would constitute "responsible journalism". (Amali de Silva).  

As can be seen, the risk of complaints isn't a matter to be taken lightly. Insurance cover is available to protect against the risk of such claims, so bloggers who regularly cover controversial issues may want to consider this as a precaution.  Tahir Basheer of Sheridans advises that Bloggers should think carefully about the content of their Blogs and resist making claims or accusations that they cannot prove and if in doubt should err on the side of caution.  Proving things in court can be difficult.  Amali de Silva Amali de Silva is a senior litigator with media law firm Wiggin LLP, "one of the UK's most innovative law firms" and ranked top in FT Innovative Lawyers - 2006.

She specialises in providing pre-publication advice to broadcasters, print and new media publishers and advising clients on a wide range of media law and commercial disputes.

Wiggin LLP, 95 The Promenade, Cheltenham, Gloucestershire GL50 1WG DX 7427 Cheltenham Tel: 01242 224114 Fax: 01242 224223 10th Floor, Met Building, 22 Percy Street, London W1T 2BU DX 37201 Piccadilly Tel: 020 7612 9612 Fax: 020 7612 9611 Email: amali.desilva@wiggin.co.uk

Web: www.wiggin.co.uk Tahir Basheer Tahir is a Partner at Sheridans Solicitors, a leading media and entertainment law firm. He has a broad based entertainment and media practice which includes areas such as e-commerce, music, computer games, trade marks and intellectual property. His clients range from corporate entities, entrepreneurs, high net worth individuals, up and coming artistes, musicians, designers and creative industry management teams in the UK and overseas. Tahir founded the firm's Technology practice and is also a member of the International Association of Entertainment Lawyers.  Sheridans, Whittington House, Alfred Place, London WC1E 7EA Tel: +44 (0)20 7079 0103   Fax: +44 (0)20 7079 0203 Email: tbasheer@sheridans.co.uk Web: www.sheridans.co.uk


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