Rule 2. Avoid Virtual Vendettas

If you have a vendetta against someone or something, be it your ex-lover, ex-boss, or some up-and-coming competitor, using the World Wide Web as a vehicle to attack, harass or humiliate may land you in court.

To be sure, on a broad societal level, airing concerns and complaints is important.  That freedom provides protection against oppression.  On an individual level, warning others about risk can be a noble thing.

But throw in some falsehoods or perpetuate nasty rumors and you’re providing the sort of ammunition that would delight a plaintiff’s lawyer.  And, if someone’s hurt you so badly that you are considering suing them, post at your own peril.  Your public grievances could easily boomerang, contributing to counterclaims against you.

Claims and Counterclaims

Perhaps the most surprising fact that emerges from a review of the swelling list of lawsuits relating to blogging and online publication is that so many are between parties who had prior negative personal dealings.  From doctors, to teachers, to ex-lovers chastised on blogs and Web sites, the cast of plaintiffs in Internet-related lawsuits is expanding and diversifying.

In many of those cases, the defendant had a personal issue with the ultimate plaintiff and went public with that problem online.  That’s different from the majority of defamation cases against traditional journalists who generally avoid writing about subjects with whom they’ve had personal dealings.

Click here to see summaries of some cases cited by the Media Law Resource Center in which personal interactions and virtual lambasting landed in bricks-and-mortar courthouses.

While libel claims are usually brought by plaintiffs in civil cases, prosecutors in some states have dredged up old criminal libel laws in search of sanctions for virtual vendettas. Punishment can include jail time, according to Eric P. Robinson, the staff attorney who has been tracking blogger cases at the Media Law Resource Center.

Seventeen states (as well as Puerto Rico and the U.S. Virgin Islands) have criminal libel laws on the books.  Robinson identifies those states as: Colorado, Florida, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington and Wisconsin.

Heightened Risk

For a mainstream journalist, using news reporting as a retaliatory weapon, to slam a rival, or for the reporter’s own personal advantage, represents a conflict of interest.  The journalist’s ethical obligations include accurately informing the audience and treating subjects of news reporting fairly.  These ethical obligations also protect journalists against legal risk.  Citizen journalists would be well advised to abide by these conventions.

That’s because under defamation law, often the most difficult legal hurdle for a plaintiff to prove is intent.  If you set out to destroy a reputation, be it a person’s, a company’s, a group’s, or an organization’s, intent can be much easier to establish.

In many states, depending upon what’s posted, there also might be privacy-related claims. For instance, there is the possibility of a false light claim — that the online publication placed an individual in a false light before the eyes of the public. Lawsuits can also be based on privacy claims of unreasonable publication of private facts, but only if the posted information lacks news value.

If your target happens to be a business competitor, then, in addition to defamation risk, you could run afoul of laws relating to anti-competitive practices.

Reducing Risk

So how do you report on someone who has done you wrong?  How do you let others in your pocket of the Internet know about problems you’ve encountered? The answer: with meticulous reporting, patience, restraint, and great care.

You need to be sure to disclose your past dealings so no one can accuse you of having a hidden agenda.  You need to be sure what you’re saying is accurate and, ideally, that you can prove the truth of what you’re saying with documents and other evidence.  You need to give your subject a reasonable chance to respond to the facts you’ve assembled BEFORE publication.  If you can’t reach the subject with one attempt, try again.  If you still can’t reach your subject, consider holding your post for a day or so until you can.

You need to consider and factor in any response that refutes the information you’ve collected.  After you’ve done so, take a step back and ask yourself whether you still have a legitimate story and whether you are capable of reporting that story fairly and accurately.

If you’re threatened with a lawsuit or if you think your publication could prompt legal action, consult with an attorney and have the lawyer review what you plan to publish and suggest ideas to further reduce legal risk.

These protective measures will help you avoid a lawsuit.  In addition, they will bolster your accuracy and credibility.

Bottom line: If you’re seeing red, be very careful about what you post in black and white (or any other color you care to use on the Internet.)

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