Blogging: the law
Having established that blogging was good for your practice, Justin Patten examines the legal implications
In last week's edition, we explored some of the issues relating to blogging and your practice. This week we will consider some of the legal issues of blogging.
These can be split into the following sections namely Copyright, Defamation, Interference with Administration of Justice and Employment Law.
Copyright
The ease with which one can cut and paste on the internet makes breach of copyright a key potential issue for bloggers. For the copying to constitute an infringement there must have been 'substantial use' and this brings into play the issue of what represents copyright infringement and specifically what represents fair dealing.
Fair dealing is permitted with any work for the purpose of criticism and review of that or another work, provided that the work has been made available to the public.
A leading case is that of BBC v BSB Ltd 1991 3WLR where it was held that showing excerpts from BBC broadcasts of World Cup football matches, to which the BBC had the exclusive broadcasting rights in the UK, represented fair dealing for the purpose of reporting current events. The excerpts varied in length from 14 to 37 seconds and were used in successive bulletins over a 24-hour time-frame following the match. Judge Scott J stated that for the purposes of the Copyright and Designs Patent Act 1988, fair dealing is largely 'a matter of impression'.
Defamation
Unlike the US, which has constitutional protection provided by the first amendment to the constitution, English and Welsh law has evolved in case law with regard to reporting on matters of public concern or public interest.
Libel occurs when a defamatory statement is published about someone else.
Generally there are three defences to a libel claim namely justification, fair comment and qualified privilege.
An article could attract the protection of the defence of qualified privilege which is laid down in the leading case of Reynolds v The Times Newspapers which was decided in the House of Lords in 1999.
A number of variables can be considered including:
- the seriousness of the allegation;
- the nature of the information, and the extent of which the subject matter is a public concern;
- the source of the information;
- the steps taken to verify the information;
- the urgency of the matter;
- whether comment was sought from the claimant;
- whether the article contained the sense of the claimant's side of the story;
- the tone of the article.
A key factor why defamation is such an important is the fact that English & Welsh libel laws are claimant friendly and the onus will fall on the blogger to justify the statement.
Interference with administration of justice
Beyond this, bloggers do need to be careful for restrictions on what can be reported in court proceedings. This is particularly relevant to law and accountancy firms that can come across with potentially sensitive facts and are often engaged in the court process.
Bloggers must avoid publications that 'create a substantial risk that the administration of justice will be seriously impeded or prejudiced'.
This is usually directed at the press prejudicing a jury by introducing facts or material not yet offered into evidence at trial that if publicised would prejudice that trial.
This is a strict liability offence. The blogger's intention is irrelevant and is not dependent on there being a specific court order in place.
Furthermore, in a relatively recent development, the Courts Act 2003 empowers courts to impose costs upon third parties such as the media where there has been serious misconduct (whether or not amounting to contempt of court) by the media organisations where the court considers appropriate.
An example of this issue manifesting was shown in an article in law.com, where a temporary San Francisco prosecutor wrote on his personal blog about a misdemeanour case he was handling the previous December. Unfortunately for the worker, the Superior Court Judge Curtis Karnow heard about it and he did not like what he read.
The judge did not find the postings prejudicial enough to throw out the entire case, as the defence wanted. However, in turning down that motion to dismiss the case in April, the judge criticised ex-prosecutor Jay Kuo, calling his conduct "juvenile, obnoxious and unprofessional." Karnow also stated his intention to send his written ruling to the State Bar.
Employment law issues
If firms decide to allow their employees to blog at work they should consider following the lead of Sun Microsystems and implementing a blogging policy on what should and should not be said.
Probably the biggest issue facing organisations is that employees will be blogging in their personal time and writing about their firm. The potential difficulty facing organisations is that as a blog is potentially a permanent document and that a search engine will pick up the record if the name of a worker or the firm is mentioned.
On the one hand the employee will have to consider his or her implied duty of "mutual trust and confidence" but balanced against this an employer needs to follow employment law procedures and contractual obligations prior to taking legal action.
Again a blogging policy can be an effective way around this as the Met Police recently introduced rules on what employees could say on their blogs and as a result of this a number of police bloggers have stopped.