Blogs – the legal issues

Please note the Law may have changed since the publication of article.

1. In the case of an individual disparaging a competitor on a blog – who is responsible should it be taken to court? The individual blogger? The Employer?

Much will depend on whether the company actively encourages its employees to blog (whether for marketing purposes or otherwise). If they do (or are seen to do so), usual tortious principles would seemingly apply and there would be a credible argument to the effect that comments made by an employee on such a blog falls within the scope of his or her employer’s authority. Although not directly analogous, it is worth noting (not least given that the application of the law of defamation to modern technology has been steadfastly applied by reference to traditional principles) that, unlike some American law, there is no fetter under English law in differentiating between slander and libel. As such, employers have been held liable for the rashly uttered words of their employees, notwithstanding that such words were not spoken at the employer’s discretion. Thus, employers who encourage ‘unsupervised’ blogging are effectively leaving matters at the discretion of their employees and could arguably be considered liable for the outcome.

It would therefore be advisable that any company promoting blogging has a comprehensive policy governing use and content. Even then, however, a general prohibition on the publication of defamatory material is unlikely to suffice to exclude liability. Indeed, established case law would suggest that an employer can be liable for even unauthorised publication of allegations by an employee when that publication occurred incidentally to the performance of an authorised act. In such circumstances, the fact that the employee chose an improper method of performing his ‘duty’ is nothing to the point. It is not hard to see such logic applied to blogs where the employer has encouraged legitimate discussion of rival businesses.

2. What are the consequences? How much can individuals/companies be sued for?

The most obvious consequences are potential liability in defamation and/or malicious falsehood. The fact that these blogs are published on the internet (and are therefore potentially accessible worldwide) also leaves real dangers of litigation outside of the company’s own jurisdiction. There is no formal ceiling as such on any award of damages in the UK, but it is now accepted that awards should not exceed the maximum amount recoverable for general damages in respect of personal injury claims (currently £200,000).

In the UK, the embryonic development of the law of privacy has seen claims brought on such a footing tending to attract relatively low awards of damages (on the other hand, the most blatant and damaging breaches of privacy are almost always settled long before any trial). However, breaches of confidence concerning sensitive financial information or content can of course lead to substantial claims in special damage.

An individual employee can be personally liable and where jointly liable may seek a contribution or indemnity under the Civil Liability (Contribution) Act 1978.

3. If a Network host is notified of a blog that is defaming, and they do not remove the page – are they liable? Or, are they “innocent bystanders”?

The failure of a network host to remove a defamatory blog promptly when notified leaves it in real danger of losing its statutory defence of ‘secondary responsibility’ under section 1 of the Defamation Act 1996 and the Electronic Commerce (E.C. Directive) Regulations 2002 (SI 2002/2013 as implemented).

4. Are blogs governed by the same laws as traditional publishing?

Essentially yes. In terms of defamation, the only significant distinction is the additional protection provided by the Electronic Commerce (E.C. Directive) Regulations 2002. In general, the approach of the English courts has been to mould longstanding authority to ‘fit’ the dilemmas thrown up by new media rather than consider the issues arising from fresh.

© This article is copyright Simon  Halberstam  2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.