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Blogger faces lawsuit over comments posted by readers

September 9, 2005

The Wall Street Journal has a nice story (sub. req’ed) summarizing the lawsuit brought against a blog publisher as a result of comments left on his blog. sued Aaron Wall, publisher a blog on search engine optimization – tactics companies use to get themselves to appear higher in searches at Google, Yahoo and elsewhere – alleging defamation and publication of trade secrets. At issue are comments left by a reader in the comments section of his blog.

Traditionally, courts have held operators of computer message boards and mailing lists cannot be held liable for statements posted by other people. It’s kind of like being a phone company – you can’t be liable for what people say over your phone line. I expect blogs will be viewed the same.

But the Journal reports we may be in some ‘grey area’ (legal phrase of all time) on this one:

Legal analysts said the suit could be a test case for determining what protections bloggers have or don’t have for allegedly defamatory material posted by others. At issue would be the court’s application of the federal Communications Decency Act, a 1996 law that, broadly, protects providers of computer services from being held liable for content posted by others.

In a key decision in 2003, the Ninth Circuit Court of Appeals in San Francisco ruled that the operator of a Web site can post material from others without liability for the content. ‘I think there’s a strong case to be made that [the Decency Act] applies to bloggers,’ said Marc S. Martin, a lawyer with Kirkpatrick & Lockhart Nicholson Graham LLP in Washington, D.C., who specializes in technology law. It ‘was written very broadly, and the Ninth Circuit interpreted it broadly.’

But Mr. Martin and other legal analysts said it was less clear how a court would view the accusation of misappropriation of trade secrets. The Decency Act doesn’t provide protection when intellectual property is posted, and a court may rule that trade secrets fall under the definition of intellectual property. State law, rather than federal law, generally applies to trade secrets.

And possibly in the ‘lawyers get paid to be creative’ category it looks like the door may be open to law suits when one is a competitor and starts taking too many pot shots at the competition.

Daniel Perry, an Orlando, Fla., lawyer who has closely followed Mr. Wall’s case online, said Mr. Wall may have taken on liability by posting negative comments about himself. Another problem, he said: Mr. Wall could be viewed as a commercial competitor to Mr. Wall’s blog is so named because he wrote a guide called SEO Book, about search engine marketing, and he promotes the book on his site.

“To be candid, he sort of moved into this moving propeller,” said Mr. Perry, a former Orange County judge. He said courts would likely focus on how Mr. Wall responded to requests to remove material from his site, and Mr. Wall’s criticism of “The Internet is not your personal stump to beat up people.”

Hell, my blog is a full of opinions about my competitors and it’s my frank, politically incorrect speech about providers of legal marketing services and solutions that brings LexBlog a lot of work. I have tremendous respect for lawyers and the good work they do but for blogs to be an effective exercise of free speech, the blog publisher cannot be afraid of law suits.

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