< The Calculated Risk of Blogging

Transcript

Friday, October 03, 2008

BOB GARFIELD:
Last week, the blog search engine Technorati released its annual State of the Blogosphere. The conclusion? The state of the blogosphere is strong. In fact, almost half of the 133 million blogs that have been created since 2002 were created in the past year and a half.

But something else was created in direct proportion — potential liability for libel, copyright infringement, defamation or invasion of privacy. The Media Bloggers Association tracks the rising number of lawsuits against bloggers, and MBA founder Robert Cox says that even frivolous litigation costs money to defend, and legitimate claims have no limit.

The mere threat of a lawsuit, he says, is sometimes enough to scare writers out of the blogosphere altogether.
ROBERT COX:
There was a blogger up in Newburyport, Massachusetts who wrote a blog called the Newburyport Report. She went in to investigate who was buying a property in her town. She published public records on her website, and shortly thereafter was notified by an attorney representing the real estate developer to cease and desist or he'd take her into court.

By the time she called us, it was actually too late. She had already responded to the threat by not only taking down the posts about the acquisition of real estate in her town but had shut down her blog entirely.

And in talking to her and trying to encourage her to get the site back up, she told me — and this is fairly common — I didn't get into it for this. You know, this was a fun thing for me. I was reporting about my town. I was engaging my neighbors. And all of a sudden I'm dealing with the threat of a lawsuit. Thanks but no thanks.
BOB GARFIELD:
It’s obviously a horror story. Do you have any reason to think that it is being replayed over and over and over?
ROBERT COX:
Yeah, we've been involved in hundreds of cases over the past four and a half years ranging from threats and cease and desist letters all the way up to federal lawsuits.

The Media Law Resource Center tracks these cases and reports that there’s been over 16 million dollars in judgments against bloggers. That doesn't include cases that settled out of court. We're tracking actual cases filed in court. That number has been doubling every year since 2002.

Our organization is predicated on the idea that citizen media, citizen journalism blogging, is an important transformative event for our society and has a potential for great good. We want more voices.

And it shouldn't matter if somebody’s working on it part time on a nonprofessional basis or full time as a professional. We want people to have their opportunity to say their piece. And if bloggers don't have an ability to push back in the event of a threatened litigation, we're going to lose voices and the greater good that can be accomplished is going to be lost.
BOB GARFIELD:
Tell me about the insurance program. How does it work?
ROBERT COX:
Well, they join the Media Bloggers Association. That costs 25 dollars, and there’s a process for doing that, which includes passing a test on a course we developed. Once they're a member of the association, they would click through over to the insurance company’s website. They answer some questions — I think there’s 14 of them —and generally it'll pop out an insurance quote, and then they can go ahead and make a purchase through PayPal.
BOB GARFIELD:
Some bloggers, maybe many, are simply [LAUGHS] irresponsible in some of their posts. They're either unaware of basic standards of fairness or they imagine themselves invulnerable somehow to the consequences of libel and defamation and plagiarism and copyright infringement, what have you. Maybe a few successful lawsuits are just what the doctor ordered.
ROBERT COX:
Well, it’s not our view that it’s our blogger, right or wrong. I mean, we're not interested in defending bloggers who defame people or steal other people’s creative works or things like that.

I think that the real issue here is, is that you have people now who are very passionate and excited about participating in an online dialog through blogs. Our view is, let's take that passion, channel it by giving them education. That’s why we came up with a course in media law for bloggers.
BOB GARFIELD:
Now, the course administered by the Poynter Institute teaches those basics of fairness, journalistic ethics, liability and so forth.
ROBERT COX:
We reached out to Poynter, which clearly has an interest in educating people in the area of journalism, and we developed a course that covers the basics. It takes about an hour to do. I'm going to go out on a limb here and say it’s the most fun and engaging course in media law in the world, because I don't think there are any other
[LAUGHTER]
fun courses in media law. There’s some you make the call type case studies.

And when they walk away, they should have a basic understanding of the law. We're not trying to turn these bloggers into lawyers. We just want them to know what the kind of questions are they should be asking. And then that builds on the other things that we've done, which is developing access to attorneys.

We have two programs for that, one for the insured — they can get access to one of the leading media defense firms in the country —and for those who don't get the insurance and otherwise couldn't afford a lawyer, we've developed a network around the country of about 40 law firms that have agreed to offer pro bono legal services, consultations, risk assessment, some basic advice of how to respond to a threat.
BOB GARFIELD:
All right, one last thing, Bob. There’s a legal principle known as deep pockets. Lawsuits tend to get filed in direct [LAUGHS] relationship to defendant’s ability to pay an eventual judgment.

By insuring bloggers, aren't you deepening their pockets and actually creating a market for litigation that didn't hitherto exist?
ROBERT COX:
Bloggers do have assets already. They have future income streams, they have homes, they have cars. And if they lose a judgment and they don't pay the sheriff will be knocking at their door and it won't matter whether they have insurance or not.
BOB GARFIELD:
Bob, thanks so much.
ROBERT COX:
Thanks for having me.
BOB GARFIELD:
Robert Cox is founder of the Media Bloggers Association.