Bloggings Issues: Rights of Publicity and Defamation

Posted by Natalie Sulimani

February 24, 2010

Blogging is such a prevalent activity these days. There are blogs for any and every activity, political party, hobby and interest under the sun. There are blogs for products and companies. And there are also blogs that are little more than one’s personal journal to the world. However, in spite of the ease of starting your own blog, there are still laws and rules that must be followed.

This guide is meant to highlight and explain what you must keep in mind when starting and maintaining your own blog. It will be broken down into six sections starting out with considerations of what you can write on your blog and what is protected, continuing through the intellectual property considerations of what is posted on your blog, then onto what you should consider if using your blog for business and sales, next a discussion of the legal ramifications of posting reviews and other such material on your blog, and finally a look at your rights and duties with respect to your readership.

As with all information pertaining to legal issues, this guide is not intended to replace competent legal counsel and should not be relied upon as such. The purpose of this information is to give you a big picture awareness of the law and possible legal issues that may affect you in setting up and administering your blog. It is recommended that you seek competent legal counsel for questions you may have that relate to your specific circumstances or go beyond the scope of this guide.

Protectable Speech on Your Blog

Bloggers must obey certain laws that balance the free speech rights of the blogger and the rights of the people who are the subjects of the blog to not be injured by what has been written.

Rights of Publicity: The right of publicity or in some states, the right to privacy, is a claim alleging that you have used someone’s name or likeness to your commercial advantage without consent, resulting in loss. The plaintiff generally must prove that you’re using their image or likeness for advertising or other solicitations. You can be liable if a court determines that your use implied a false endorsement. In some states, rights of publicity die with the person. In others, however, this is not so. California, for example allows these rights to go on for 70 years after a person’s death, provided that the actionable event occurred during the lifetime of the person. For example, anything you say about Michael Jackson endorsing your blog or products may be in bad taste but may not actionable because he is already dead and could not be believed to be endorsing anything anymore.

Defamation: Defamation is a false statement that is harmful to someone’s reputation, and published “with fault,” meaning that you knew or should have known that it was false. Libel is a written defamation; slander is a spoken defamation. Defamation is determined differently by the laws of each state, but generally, the elements to prove defamation are:

A publication to one other than the person defamed
A false statement of fact (this does not include opinions or statements of hyperbole)
That it is understood as being of and concerning the plaintiff; and tending to harm the reputation of plaintiff.
If the plaintiff is a public figure, he or she must also prove actual malice.

You cannot be sued under defamation for making statements of truth. However, there is a publicity right called false light that can make you liable for using factual information in a way that gives a false and damaging impression to the public. For example, including a picture of a non-terrorist in a post about terrorism, whereby the picture is factual, but by placing it within a blog about terrorism, you give the impression that the person is a terrorist when he/she is not.

Opinions and hyperbole are also not actionable under defamation. You are free to speak your mind about people on your blog, as long as it is clear that you are delivering your opinion and not trying to assert a fact that is false and damaging, or fact dressed up as an opinion. A court will ask whether a reasonable person could understand your opinion to be an assertion of truth. It is true that most blogs are viewed by the public as opinions and hyperbole and the context of most statements within your blog will reveal this to be true as well; however, as a blogger you must look at the larger picture. Your blog text will be accessible to all, via the internet. This morning’s blog post may find its way to a news website by lunch and next hop to onto the evening news. It may be true that you can show that you have a defense based on opinion, context, etc., but you still must go through the expense in time and money of answering the charges against you.

Changing the names to protect the innocent may also not be enough if a reasonable person would know who you are referring to by the context of your post.

One last and important note about defamation and republishing defamatory statements. You may be held responsible for defamatory statements that you post on your blog that you have taken from another source. So again, be careful about passing on juicy gossip. A blog is a publication and as such, there may be legal consequences to you just for passing on the information.