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6 ways for bloggers to stay out of legal trouble

Steven Price

Steven started by saying hello - always an auspicious entrance. The promise Steven made is that he may be able to avoid us, as bloggers, being sued.

Steven's advice applies to both bloggers and general internet sites in New Zealand—and the law that applies to us is the same as that which applies to the big, bad media houses with their well paid and super-slick legal teams. us poor penniless, churchmouse web dwellers need to be just as cautious. Bloggers can be liable for both what they write, and what those who comment on their blog write—both under civil and criminal proceedings.

Bloggers however do not come under the jurisdiction of either broadcasting standards authority or the press council. Their (usually) low profile makes litigation less likely than for the big names, that said here's some key guidelines;

  1. Don't moderate comments - by moderating a site manager starts to attach themselves to the comments and hence take some sort of control and responsibility for them. Hand off is safer, hands on indicates complicity in what is being said
  2. Respond to complaints - as soon as someone advises a blogger about defamatory comments or breaches of privacy etc, the blogger needs to respond as quickly as possible. Ignorance of the breach may be a partial defence but once advice hs been given that defence lapses. Always give some thought to who is complaining—public figures, big law firms and politicians should always be taken with more seriousness than a commenter writing with bad spelling, lots of capital letters and exclamation marks! Take complaints seriously but at the same time with a grain of salt. People don't want to file lawsuits. They're expensive and time-consuming. They just want you to fix something that is defamatory 
  3. Use "I think" a lot - the more evaluative, opinion based language appears on your content, the more it looks like a personal opinion is being conveyed rather than a definitive statement. "Don't make shit up"—goes without sayng ... but perhaps it doesn't given some of what we see written in the blogosphere
  4. If you're going to publish private or confidential stuff, have a damned good public interest justification. Have a genuine public interest reason to justify what you're publishing—Price gave the example of a rugby player who had been trashing homosexuality in public. It could be argued that if a blogger was aware that rugby player was in fact gay it could be claimed to be in the public interest to expose that fact
  5. If you want to write about jury trials, do it afterwards. If something is sub judice, a jury trial and in progress, it is dangerous to be writing about it - read Contempt of Court
  6. Credit your sources - be careful about copyright infringement, always credit when using other sources material. Rule of thumb—if everyone else is getting away with it, you're probably safe. Offer a right of reply

Jurisdictional issues—technically speaking one can be sued anywhere their content can appear (ie a blog can be viewed anywhere so a blogger can be sued in any jurisdiction). Interesting example was the recent Clayton Weatherston trial when a number of bloggers (this author included) created content that was clearly in contempt of court—watch this space but thus far nothing has happened about that content. Discussion also ensued about cached content—Price beleived that the fact that a content creator removes content would likely see the court not find them in contempt regardless of whether that content is in fact cached by a third party.

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