New Jersey Law Journal     Volume 186, No. 7, Index 617        November 13, 2006

DEFAMATORY BLOGGING  -- BLOGGERS MAY BE LIABLE FOR DEFAMATORY STATEMENTS, ORIGINAL OR REPUBLISHED

By Jonathan Bick   Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

Bloggers may be held liable for defamatory statements posted on their sites, regardless of whether the statements were original or republished. However, just as with traditional print publications, bloggers may raise a defense under Internet communication protection statutes and the First Amendment.

Blog, short for 'web log,' is an Internet site that contains personal journal content, including comments reflecting the writer's perspective on a variety of issues.

Most state tort statutes define a defamatory statement as any communication that tends to deter third persons from dealing with the target of the communication. A defamatory statement is actionable if it is a false and unprivileged statement of fact that is published. Courts have found Internet posting constitutes publishing for defamation purposes. And, since defamation statutes do not require the publisher to be the originator of the statement, a blogger who republishes defamatory content may be subject to liability.

Bloggers have two possible defenses to Internet-related defamation claims. First, bloggers may claim that the Communications Decency Act (CDA) of 1996, which gives Internet Service Providers (ISPs) special immunity for third-party defamatory postings, protects bloggers as well. Second, bloggers may claim the defamation immunity as journalists.

Some courts have extended the CDA immunity beyond ISP providers to individual Web site operators. In Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the Ninth Circuit expanded the scope of CDA immunity to an Internet bulletin board operator and Web master who posted defamatory third-party statements on his site. CDA defamation protection is based on the presumption that a communication facilitator should not be responsible for the bad acts of a defamation author.

To determine the level of fault for a defamation retransmitter, courts must first determine whether the transmitter acted as a primary publisher, distributor or common carrier. Courts have found author and traditional publication editors, as primary publishers, are strictly liable for defamation due to their content control. Whereas book sellers, as distributors, have little control over the content of the books they circulate, and are only liable if they should have known of the defamatory nature of the publication. Similarly, courts have found that electronic communication facilitators, such as telephone companies, have no opportunity to control content, and as common carriers, are rarely liable for defamatory content. For example, in Western Union Telegraph Co. v. Lessne, 182 F.2d 135 (4th Cir. 1950), the Fourth Circuit found that telegraph services do not have control over the messages transmitted through their services and are, therefore, only liable for the transmission of defamatory messages that they should have known were defamatory.

With respect to defamation claims, bloggers are generally alleged to be publishers of the injurious content and, therefore, strictly liable for the resulting damage. However, under some circumstances, a blog may be found to be either a distributor or a common carrier and, therefore, have a lower level of liability for the publication of third-party statements. Thus, in most instances, courts must consider blog matters on a case by case basis.

Bloggers seeking to circumvent defamation liability may benefit from the CDA's statutory distinction between traditional and Internet publications. The CDA allows some Internet publishers to post third-party defamatory messages, liability free. Traditional newspaper editors who engage in the same conduct would be strictly liability for defamation.

Originally, the CDA, allowed all Internet publishers to received almost complete immunity from suit for third-party defamatory postings. In Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), the court denied the plaintiff's claim for wrongly delaying the removal of defamatory messages posted by an anonymous third party on an AOL bulletin board.

Subsequently, courts have found the CDA did not abrogate all defamation liability for redistributing false statements through the Internet. In Barrett v. Rosenthal, 9 Cal. Rptr. 3d 142 (Cal. Ct. App. 2004), a California court found that Internet users who had actual notice of the false and defamatory nature of the statements and refused to remove them were not protected by the CDA. The court reasoned that the CDA only provided immunity to primary publishers on the Internet.

A number of bloggers may allow the public to enter comments on their blog. For those bloggers, in addition to available CDA defenses, their activity falls under traditional distributor liability defenses.

Bloggers may also seek legal protection from defamation actions on the same basis as traditional journalists. In such cases, courts will hold bloggers to the same standards of professional responsibility of a journalist. This standard primarily entails defamation background checks.

Bloggers also have claimed to be journalists to invoke state shield laws. In Apple Computer, Inc. v. Doe, 2005 WL 578641 (Cal. Sup. Mar. 11, 2005), a blogger claimed his blog to be a journalistic publication. The court found that the California shield law does not explicitly exclude bloggers who regularly publish and provide information to the public. However, the claim was made to prevent the disclosure of confidential sources rather than to defeat a defamation claim.

Bloggers cannot claim immunity from defamation suits simply because they publish their work on the Internet. Bloggers are subject to the same defamation laws as traditional print media for the posting of third-party content on their sites. They may, however, seek protection from liability in some instances by invoking the CDA, the First Amendment and journalist shield laws.