Business

Don’s Diatribe: Legal Issues in Social Media, Part I

For entrepreneurs, social media (which includes blogging) is an innovative way to promote one’s business.  Unfortunately, more and more stories are popping up about bloggers getting in trouble for what they post.  Less than a year ago, a $2.5 million dollar judgment was handed down against one so-called “citizen journalist” for defamatory remarks posted on her blog.  Across the nation, courts have seen a spike in lawsuits associated with social media activities.

 

Like all journalists and publishers, bloggers sometimes post information that others may not want published.  These may include observations about a competitor’s products, services, management style, quality of work, etc.  Some such remarks are being increasingly looked at as potential violations of defamation laws, infringements of intellectual property, or invasions of privacy.

 

Defamation is a false allegation of fact that is disseminated about a person and tends to injure that person’s or business’ reputation.  The good news?  Truth is an absolute defense to defamation.  Unfortunately, truth may be difficult and expensive to prove.  And typically, fair comment and criticism is protected, but merely labeling a statement as one’s “opinion” does not necessarily make it so.  [More on how to respond to online criticism next time.]

 

Unlike a reporter at a local newspaper, social media enthusiasts may not have the benefit of training or resources to determine the legality of their online activities.  Further complicating matters, most of our nation’s media laws were written for traditional journalists and courts haven’t yet decided how those laws apply to the blogosphere.

 

In a legal action, courts will look at whether a reasonable reader could understand the accused statement as asserting a statement of verifiable fact.  This means that context is critical!  When examining a blog in question, a court would likely start with its general tenor, setting, and format.  Next, a court may look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used.

 

But this is what happens after the lawsuit is filed.  The best strategy for an entrepreneur is to avoid costly, embarrassing, and energy-depleting litigation all together.  Steer clear of potentially defamatory utterances in the first place.  Do not rely on information from anonymous sources.  Finally, provide the targets of defamatory allegations an opportunity to respond.

 

Don’t let concerns about defamation stop you from blogging.  Freedom of speech is the foundation of a functioning democracy.  But before posting information, observations, or accusations about someone’s (especially a competitor’s) products, services, or business, make sure that your comments are grounded in fair and balanced observations based on personal experiences.  Don’t let blogging legal problems sidetrack you from success!

 

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 Donald R. Simon, J.D./LL.M., is president and CEO of Simon Business Consulting, Inc., a firm providing consulting services such as business and marketing plan development, incorporations, intellectual property advising, franchising regulatory assistance, and presentations on the basics of starting a small business.  Send questions or comments to don@simonbizconsulting.com.  This blog is provided as a source of information and is not to be construed as legal advice or opinion, or to form an attorney-client relationship.  For legal advice, please consult an attorney.