I was recently criticized by an idealist blogger about my position on blogging, publishing, and why you should be careful when publishing negative content.
One of my specialties is Reputation Management and Crisis Communication. I’m not a lawyer, but I have prepared Rep and Crisis Communication Strategy and Plans, and had to execute them for many companies and clients. Plus, I’ve been on both sides of the fence as a journalist and PR pro – including communication law cases.
I’m a 30-year professional journalist and college j-school teacher. I’ve taken and taught media law for a long time. You should know there are consequences for libel and slander.
This post isn’t a class in media law; but, it is a practical overview of the issue on the street.
I encourage you or anyone to speak your mind anytime you want. Freedom of speech is of vital importance to our country and liberty. I get it.
But the truth matters. Facts matter. So does reality.
If you purposefully lie, distort the truth, publish outright false information, and it materially damages someone or their reputation, and they can prove it, the legal action could be a real drag.
I’m not talking about opinion. That’s different.
If you want to publish that you don’t like something or someone, it’s not illegal. Most companies or individuals won’t take legal action. It’s a business decision. Cost vs. bad press, reputation, or customer relations. Public companies usually won’t take action.
Plus the burden of proof to prove libel is all on the person bringing the lawsuit and it’s hard to prove to the standards set by the law. Congress and the Supreme Court made it that way to protect free speech.
What I’ve explained so far is the ideal world. Now for some reality.
Private individuals or privately held companies are a different matter when you attack them with a blog, especially ones with deep pockets and no board of directors to report to, when they decide they personally don’t like something a blogger publishes.
I witnessed the president of a privately held company legally and financially game and drain someone dry because of blogging. The blogger is living with his mother now.
Would the president win in court? Probably not, even though the blogger was a jerk. However, the legal amusement from a vindictive person with lots of money is endless and so is the cost – for the other party AND YOU.
The question is… as a blogger, how much time and money do you want to spend with lawyers? How much do you have?
If you turn your publishing into a full-time rant, the savvy will launch their reputation management system and make your posts irrelevant or worse – you can ruin your own reputation.
If you’re really nasty in your posts, with the sole purpose to ruin someone’s reputation, some will take legal action based on “poison pen” law. I just read that a ranter just got found guilty of that. They’ve gone for years in the legal process. Great fun for them I’m sure.
By the way, this isn’t just about one or two court cases. There have been many. Most don’t make the press. You have to read the court records.
Many posts and blogs have been taken down by an ISP or blog hosting company because of violations of terms of service. Most article directories won’t even allow you to mention a company name unless it’s yours. They don’t want the grief. Censorship? Yes.
In an ideal world, you’re right. Nobody should censor.
Unfortunately, this is a hugely litigious country and the folks with the biggest bank account can bleed you dry. Is it right? No. Does it happen? Everyday.
Here’s how it works.
In almost all cases, lawsuits settle – you never get to court to have a “decision” based on what is right. Most of the time there is a signed agreement by both parties – and the judge that you never get to meet – requiring you to shut up about the case. So you won’t read much about it or the litigant that leaked will have to go before that judge and defend against contempt of court.
Usually they settle somewhere in the middle after both parties are tired of spending or the hassle. Your time and cost will be yours – at $150-$350 per hour for your lawyer, who usually wants to keep it going, plus mediators at $750 a day. When all is said and done, the lawyers got richer and you got poorer. Is it worth it?
My point is: there is an ideal and purely constitutional law side to this – and there is a practical and real-world (and some would say cynical) side.
The ideal is a free flow of ideas and honest discussion, agreement, and disagreement. That exists most of the time and it’s good.
But get your facts wrong and in the process harm someone badly, or go over the top with opinion to the point that you anger someone with deep pockets, and I guarantee you’ll wish you never wrote that post.
I know: reality stinks. You can live in an ideal la-la land in your head. Or you can live in the real world. It’s your choice. The key is to pick your battles.
Sometimes, it’s just better to listen to what your mother taught you, “If you don’t have something nice to say, don’t say it at all.”