Throwing the book at blogs

Last week, I spoke to the Media Law Resource Center and a roomful of top media lawyers about blogs and other trends blowing up media. (My skeletal PowerPoint is here.)

While there, I pushed the group to take responsibility for helping train bloggers and other citizens in libel law, copyright, and other relevant law. We need to help bloggers not get into trouble if they don’t have to or to defend themselves well if they do. We also need to lobby to protect bloggers — yes, bloggers — under shield laws if others who perform acts of journalism get that protection; we need to protect them from SLAPP harassment; and more. This is why I’m back raising funding for a Citizens Media Center at CUNY; this is one among many reasons why I’m joining with Jarvis Coffin of Burst and others to form a citizens’ media trade organization.

: I learned at the session at Eric Robinson at MLRC had compiled a list of suits against or involving bloggers. It’s a sobering list. I’ll quote and excerpt the salient points; Eric has all the links and details on the MLRC site. And I thank Eric for putting that up:

* California: News Corp. subsidiary News America, publisher of the New York Post, subpoenaed Google to try to find the identity of a blogger who was posting the Post’s “Page 6” daily gossip column in total, except for the advertising. There has been no further action in the case, although the site has been removed.

* Delaware: The Delaware Supreme Court ruled on Oct. 6 reversed a lower court’s decision ordering an ISP to reveal the identity of anonymous posters to a blog operated by the Delaware State News. Smyrna, Del. town councilman Patrick Cahill and his wife are suing the posters and the newspaper for libel over the posted comments. … After a discussion of the nature and reliability of blog postings, the court also dismissed the libel claims, since the statements “were no more than unfounded and unconvincing opinion.”

* Georgia: Atlanta-based employment law firm Fisher & Phillips LLP sued five “John Does,” claiming they published “false and malicious communications” about the firm on the Internet. The firm agreed to dismissal of the case after the court cited it for failure to effectuate service of process.

* Illinois: Emanuel Welch, president of the District 209 (Proviso Township High Schools) school board, and his brother Bill Welch filed suit against blogger Carl Nyberg after Nyberg filed an ethics complaint against Emanuel Welch over his vote in Aug. 2005 to hire Bill Welch as a school custodian. Besides being his brother, Emanuel Welch has represented Bill Welch when he was convicted of drug possession two years earlier. The ethics complaint alleges that Emanuel Welch did not disclose this representation when voting on his brother’s employment. The Welches responded with a libel suit based on postings about the ethics complaint.

* Nevada: A summary judgment motion is pending in this case, in which an Internet marketing company sued the owner of a blog on search engine optimization for libel and publication of trade secrets. The suit, which has been removed from state to federal court, also names several posters to the blog.

* New York: In August, the Appellate Division reversed a trial court ruling dismissing former Cornwall Supervisor Jim Sollami’s defamation case against Tom Sheppard, who publishes The appeals court held that eight of the statements at issue in the case were capable of defamatory meaning and should proceed to trial.

* New York: The court dismissed a libel suit against a New Jersey man for his 45-page Web site detailing his gripes against car insurer, holding that the comments on the site were protected free speech and did not constitute defamation.

* Ohio: Two Internet bloggers were jailed in July on charges related to their posting material critical of a judge and sending him intimidating e-mails. Elsebeth Baumgartner of Oak Harbor and Bryan DuBois of Sandusky were held on charges of intimidation, retaliation and possession of criminal tools (a computer). The pair allegedly libeled and harassed retired Cuyahoga County Judge Richard Markus, who presided over a libel lawsuit based on letters that Baumgartner, a former attorney who was disbarred in 2003, sent to a school board member. That trial ended with a $175,000 verdict against Baumgartner. In April 2004, Judge Markus also declared Baumgartner a “vexatious litigator” under Ohio law after she refused to defend herself in the proceeding. The designation means that Baumgartner’s several existing lawsuits and appeals were dismissed, and that she cannot initiate new litigation without permission of the court. At the start of their criminal trial on Nov. 14, trial judge Shirley Strickland Saffold revoked Baumgartner’s bond and ordered her sent back to jail after Baumgartner said that she would be renewing her motion to have Saffold removed from the case,

* Wisconsin: A radio talk show host who posted and responded to a listener’s e-mail on his blog settled a lawsuit against him for $5,000. WTMJ-AM talk show host Charlie Sykes removed the e-mail within a few hours of posting it in November 2004 post, after he learned that it contained factual errors. But the posting was still available [via] enterprising Internet search three months later. The result: a libel suit. The suit, filed by Spanish Journal Editor Robert Miranda, was settled in return for the station establishing a $5,000 scholarship for high school journalism students.

* U.S. Army: In July, the U.S. Army demoted and fined a soldier for publishing “classified” information on his personal blog. The case led the military to required enlisted personnel to register their blogs with superiors.

: LATER: Please see the comments for various clarifications.

  • Jeff –

    In Pajamas 1.0, back when I was involved, we’d actually sourced an insurer who would offer libel coverage (with some significant carveouts) to bloggers who joined up.

    I’m guessing that’s not a feature of OSM, but I’d bet that it would cost about $5K to set up a trade association and potentially offer member benefits – pooled legal insurance and maybe even health insurance (!) to the members. My wife, TG, works for just such an organization…worth pursuing? I’d kick in the $5K to make this happen…

    Marc “Armed Liberal” Danziger

  • Whatever happened to the Media Bloggers Association? (or shouldn’t I ask that question …). Wasn’t one of the goals there some sort of libel insurance?

    A little while back, I did some digging on the topic for my own reasons, and found there were various policies in the market (“media liability” seemed to be the key phrase). Getting a group rate and qualification for one of those policies would be a very concrete, useful, thing.

    By the way, several of those lawsuits aren’t about “bloggers”, unless anyone who posts anything somewhere on the Internet counts, including e.g. comments in a chat forum.

  • Next do we have a case requiring a blog host to disclose information identifying a poster that has been putting up scurilous or other comments on a particular blog? Jeff, who knows who I am, may be called before a grand jury to reveal who I am so that I can be prosecuted if I say something damaging about, say, GM?

  • A clarification based on Seth Finkelstein’s comment: As the list online explains, all these cases are against bloggers (using the wikipedia defenition as a guideline). The list would be much longer if I’d included lawsuits against commenters on message boards and chat rooms.

    Eric Robinson
    Staff Attorney
    Media Law Resource Center

  • Thanks for writing about my case.

    I have a correction. Billy Welch was indicted for possession of a controlled substance with intent to deliver along with Marco Thomas, whom B. Welch was arrested with. B. Welch was not convicted for this arrest.

    The feds took jurisdiction of the Marco Thomas prosecution and the State’s Attorney dropped the prosecution of Welch for reasons I consider suspicious. Emanuel Christopher Welch who served as B. Welch’s attorney formerly worked for the State’s Attorney’s office.

    Ron Anderson, a close friend and political ally of Emanuel Christopher Welch, was arrested–according to local newspapers–for possession of large amounts of cannibis in March, days before his election to the District 88 school board. While the State’s Attorney prosecuted Jeremiah Norris, Anderson’s brother and co-owner of the house, Anderson was not prosecuted even though the police said the odor of marijuana was so strong it could be smelled from outside the house.

  • When you write about cases you should probably link to the blog in question. Also, since there is good newspaper coverage of my case online, you should probably link to this also. Readers may want more background.

  • Insurance may be nice to have, but I think it’s more important for bloggers to have knowledge of how to stay out of trouble in the first place. I worked for a TV station that was owned by an insurance company. It regularly had libel classes for the entire newsroom.

    The basic thing folks need to remember is that once you say someone else has done something wrong, you are potentially putting your life in that person’s hands. And don’t think attribution is a complete defense – as my old law school dean said, “Tale bearers are as guilty as tale makers.”

  • I have corrected and updated the list (

    Eric Robinson
    Staff Attorney
    Media Law Resource Center

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