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Legal Blogging Liability FAQs

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by , 07-06-2012 at 04:59 PM (1834 Views)


This Legal Blogging Liability Overview is a set of FAQs which addresses common blogging issues of a legal nature which could affect your writing as a blogger, publisher, and most importantly in situations where you may have been sued or face some type of legal action regarding to information published on your blog.

What do I do if I am sued for something that I blogged?

Contact a good attorney (If you don't have an attorney already, or need help finding one, we can help). If your state is free and legitimate speech, you'll be protected.

Do the State Laws Vary On Free Speech for Blogging?


Yes. The Constitution as well as federal laws, including copyright law and more do hold sway nationwide, but many laws affecting you as a blogger do vary depending on the state. As an example, defamation and reporter shield laws along with privacy laws for blogging are defined on a state basis.

What are the Legalities that might Arise While I Blog?


You're up against similar liability that anyone publishing a work which is made available to the public faces. Blogging is much like any other type of publication, and legal blogging is something that is not difficult to get a handle on. Likewise you receive the same protections for your free speech. Some of the legal blogging liabilities include
  • Intellectual Property (Copyright/Trademark)
  • Defamation
  • Right of Publicity
  • Trade Secret
  • Publication of Private Facts
  • Intrusion into Seclusion
Am I Free to Blog Anonymously?

Yes. First Amendment free speech includes anonymity. To paraphrase McIntyre v. Ohio Comm: The writer is typically free in determining whether they want to share their true identity or not. Reasons for anonymity include fear of economic repercussions, social ostracism, or by the simple desire to maintain as much privacy as possible. Motivations aside, it is clear that the value of allowing anonymous speech to enter the world and the marketplace are an important right to be preserved. Hence, an author's choice to stay anonymous, just like any other choice they make regarding the omission or inclusion of content in a publication, is a First Amendment protected right.

Will Anyone Ever Be Able to Find my Identity as an Anonymous Blogger?


Possibly. Subpoenas can be used to obtain a bloggers identity. However, this is only true if a person's real details were provided. Some bloggers use pseudo-name credentials when signing up for services and hence have an added layer of anonymity.

My ISP received a subpoena to release my identity!


If you want to retain your anonymity, you may contact a lawyer regarding filing motions to quash a subpoena. Courts generally require the entity or person subpoenaing another party to provide compelling need for access to the information. The burden of proof is then shifted to the party attempting to subpoena your identity. If they cannot show a compelling need for the information, it will not overpower your free speech.

My ISP removed my free and protected speech. Is this a violation of my constitutional rights to free speech?


No. The First Amendment protects against government intervention. Private parties also have the freedom to post or host whatever they want. They may also choose not to host certain material.

May I Legally Publish C&D's? (Cease and Desist Letters)


Yes! Bully-type Cease & Desist correspondence are generally designed to stifle legitimate free speech. In fact, we encourage you to post them here so that we can annotate them to share with you information about your legal rights in response to the C&D.

Do legal issues regarding forums, and other websites significantly differ from legalities of blogs?


No they do not. The legal situations discussed in this guide may be broadly applied to online publishing. For example, a forum where members can post thoughts, questions, comments, etc is very much similar to blog comments.

Does the comments section of my blog provide First Amendment rights to commenters so they can say whatever they want whether it's true or untrue?

No. You are allowed to moderate your own blog in any way you see fit. This includes removing posts you disagree with, or posts containing hate or profanity. You could also choose to leave them in. You choose who and how a person comments on your own blog. Although this is legal, we are among those who believe an open debate helps the conversation, so removing comments on the sly might or might not prevent an open debate. It's something for you to think about.


A moderator has disemvowelled a portion of my comments. Is this illegal?


No this is not illegal. We aren't aware of any legal cases regarding disemvowelling, which refers to taking out the vowels of a post. This is considered criticism or commentary from another person on your post. Although it might not be allowed on your particular forum, it still wouldn't likely be considered unfair use of your words or speech by courts.

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