If you are reading this, you probably have a blog. If you don’t, it is time to start one. Blogging is one of the best ways to reach your target audience and establish your credibility as a lawyer. And these days, it couldn’t be easier to get a blog up and running. Significantly, many of the free blogging platforms such as WordPress and Blogger rank high in search engine results, driving extra traffic to your site. But this post isn’t about blogging; it relates to potential liability you may face as a blogger. No, I’m not talking about the FTC’s rules governing endorsements and disclosures. I’m talking about libel. More specifically, I’m addressing libel from comments, not necessarily the post itself.
In many blogging platforms, anyone can comment without any moderation.
The owner of the blog often has no control over who comments, what they say, or the manner in which they say it. The blogger does not control the truth of the matter or whether it is libelous.
But what about blogs such as Lawyernomics or, more importantly, your own blog, where comments are moderated? When you leave a comment on one of my posts, it enters a queue and I get an email informing me that I need to approve or disallow a particular comment. By approving and publishing a false, inflammatory, or libelous comment, have I opened myself up to liability? Most certainly, choosing to publish the comment counts as “publication” for purposes of libel law. See Am. Jur. 2d Libel § 241. But bloggers can find solace in a 2004 decision from the Appellate Court of Illinois:
However, a republisher cannot be held liable unless the plaintiff establishes by clear and convincing evidence that the statement was published with actual malice, that is, with knowledge that the statement was false or with reckless disregard as to whether it was false.
Brennan v. Kadner, 814 N.E.2d 951, 959 (Ill. App. Ct. 2004). Be careful though; republishers of libelous statements cannot escape liability by claiming they are simply republishing the libelous statement of someone else. Moreover, “the republisher is subject to liability even if he or she expresses disbelief in the republished statement.” Am. Jur. 2d Libel § 241. Of course, you should still be careful with what you let onto your blog. Freedom of speech and expression is great. Remember that, as a blogger, you have a right to exercise that right too.
So get those blogs up, invite comments, start discussions, and pay attention to make sure you don’t stray into the gray area. While it is unlikely that you will ever see a lawsuit over a libelous comment to one of your stories, there is no need to invite threats or DMCA take-down notices or the like.