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How Risky Is Your Blog?: A thorough blog policy can reduce liability

March 1, 2008

by Isham R. Jones

Hosting a blog can be an extremely effective vehicle for communicating with your members and the public. Like virtually any other business-related activity, however, hosting a blog creates the potential for legal liability for your association. Although the National Association of Realtors® is not aware of a state or local Realtor® association that has been sued over the content of a blog, here are some ways to significantly reduce your risk.

Them’s Fightin’ Words

Defamation claims pose the main risks for blog hosts. What constitutes an actionable claim varies from state to state, but a defamatory statement generally involves a false and disparaging statement about another that causes injury to reputation by exposing a person to hatred or contempt; lowers him or her in the esteem of others; or, more commonly, injures his or her business character. Classic examples include assertions of criminal or immoral conduct and alleging general incompetence, dishonesty, or unethical behavior in business. Note that defamatory statements against a company are just as actionable as statements against an individual.

The best way to shield your association from a defamation claim is to ensure that the content you post to your blog is true, as truth is generally a complete defense. The courts have recently given broad interpretation to the federal Communications Decency Act to immunize blog hosts from liability for such statements. But upon discovery of derogatory, false, or malicious material posted on your blog, the best way to reduce liability is to promply remove it or post a correction if warranted. You may also consider allowing only your association members to post to your blog.

Play by the Rules

Your blog’s “terms of use” will serve as your first line of defense. The level of detail will depend largely upon whether you allow third parties (members of the public) to post content to your blog.

Although the law is not settled regarding the liability of Web hosts for defamatory statements posted by third parties, permitting third-party content can create additional liability risks, but prohibiting material from third parties may frustrate the intended purpose for your blog, i.e., to create an open discussion and information exchange. The goal is to minimize the risk while maximizing the service.

The terms of use is the perfect place to set the rules and disclaim responsibility for third-party content. For example, your terms may state that “the opinions expressed on this Web log are the opinions of the individual author and may not be shared by the [name of your association].” Users of your blog should also be specifically notified that you may remove any material at any time for any reason without notice. As a Realtor® association, you may also require that postings by Realtors® conform to the Code of Ethics.

Although you can adopt a policy of selecting which messages to post, this more active involvement in publicizing the message may increase the risk of liability.

CopyCat

If you allow third parties to post material to your blog, keep in mind that you could also be held responsible for copyright infringement. As the host, watch out for users uploading (or pasting) potentially copyrighted material, such as music, video clips, and magazine and newspaper articles, to name a few.

To combat this problem, make sure the terms of use require posters to expressly represent that they have the right to post the material. Your terms of use should also include a “safe harbor” policy based on the Digital Millennium Copyright Act, which would require you to remove infringing material once notified of the problem. This would limit your association’s liability for copyright infringement.

If you post content from your own association magazine, make sure your agreement with the author or third party who created it expressly permits this use of the material.

You probably have an implied license for materials posted to your blog voluntarily by third parties, but you should still consider including language in your terms of use that expressly conveys these rights. Similarly, your terms of use should set forth the rights of third parties to use the material you post to your blog elsewhere, along with the conditions for such use. For example, you could grant a nonexclusive, nontransferable, limited license to use your material, but no right to make “derivative” works or modify your material without express written permission. You could also require reprints to include a statement acknowledging your association’s permission to republish the work.

Big Brother is Watching

Realtor® associations are groups of competitors who come together to promote their common business interests. As such, they are vulnerable to allegations of antitrust violations. The informality and potential anonymity of a blog may create a false sense of security among its users. As the host, you should remain alert to messages that raise antitrust concerns, such as discussions regarding commission rates, pricing structures, listing policies, or any practice that smacks of a boycott. Offending material should be removed immediately.

Althoug it may be impossible to fully eliminate the legal liability associated with hosting a blog, being aware of the major legal issues and taking affirmative steps to deal with them in advance will at least help to reduce those risks. n

Craigslist.org found not liable for unlawful content posted by users
A federal appeals court upheld a previous ruling in favor of Craigslist recently, saying that the public message board was not liable for discriminatory postings under the federal Fair Housing Act. The court held that Craigslist was not the “publisher” of the postings pursuant to the federal Communications Decency Act, but merely the “messanger.” Craigslist is an Internet bulletin board, where every month more than 30 million people post offers to buy, sell, or rent goods and services, including housing, free of charge.

Although association law has its peculiarities, this could be a positive legal precedent for associations wondering if they would be held liable for unlawful (say, antitrust) content posted on their blogs by third parties.