Vol. 79, No. 3, March
The Shifting Legal Landscape of Blogging
The use of blogs as a forum for online
communication is gaining popularity and their content is gaining
influence. Yet the structure and nature of blogs raise a litany of
challenging legal issues, including ones involving defamation, privacy,
and copyright law. As the law catches up to this new technology,
bloggers and their lawyers need to tread carefully in the shifting legal
landscape of blogging.
by Jennifer L. Peterson
eblogs, or "blogs," are a rapidly emerging form of online
communication that is fast, easy, interactive, inexpensive, universally
accessible and - from a legal perspective - uncharted territory. A blog
is an online journal or commentary posted to the Internet and can
pertain to just about any conceivable topic. This relatively new type of
forum1 is gaining steadily in both
popularity and influence. There are more than 10 million blogs today,
and it is estimated that at least 32 million Americans read blogs
As usual, the law follows technology, sometimes slowly. For example,
one state supreme court just recently decided a blogging defamation
case, providing one of the first judicial analyses of the
phenomenon.3 Blogs cannot be ignored, and
neither should the potential legal issues they create. Yet, the
structure and nature of blogs raise a litany of challenging legal
issues, including ones involving defamation, privacy, and copyright
Questions are being raised in defamation law about the applicability
of traditional standards for defamation claims and, in privacy law,
about the circumstances under which anonymous bloggers can be unveiled
to pursue legal remedies against them. Furthermore, the nature and
context of blogs may lead to unpredictable results for blogging
defamation cases, especially given the applicability of federal
statutory immunity under the Communications Decency Act of 1996.4
Peterson, U.W. 2001, is an associate at LaFollette Godfrey
& Kahn, Madison, and a member of the firm's lititgation and media
law teams. In addition to commercial and media litigation, her practice
focuses on constitutuional law and appellate litigation.
The blogosphere is merely a click away on everyone's computer. Blogs
often provide links to other blogs or Web sites, with the blogger
usually providing commentary or analysis. For easy navigation, the most
recent blog entry appears first on the computer screen. Many, but not
all, blogs allow readers to post comments or responses to each blog
entry. At their best, blogs provide a civil, usually lucid, and running
debate about subjects of public interest and concern. At their worst,
blogs are potentially defamatory, profane, and rife with rumor and
misstatements of fact.5
Blogs require no technical knowledge of the Internet. Bloggers do not
need to use any computer languages, such as HTML, or even be computer
savvy. With Internet access and just a few minutes, anyone can start a
blog and share opinions, messages, photos, and even video (a "vlog")
with millions of people worldwide.
The perception of blogs as a means for only personal expression or
communication is anachronistic. While many people blog only about their
personal lives, businesses and news organizations also are blogging.
Corporate blogs may offer a unique forum for marketing new ideas and
products and permit easy communication between management and employees.
Blogs focusing on a certain topic or industry often discuss trends and
history. Media blogs provide an opportunity for individuals to discuss
world events and their coverage. "Poliblogs" are a forum for political
expression, and "milblogs," or military blogs, chronicle the experiences
Blogging is a form of expression and, like other types of
communication, can be both false and defamatory. Unlike more traditional
forms of speech, however, the ease and speed of blogging mean that a
click of the mouse potentially will publish the writer's thoughts to
millions of readers. Accordingly, bloggers should be - but almost
universally are not - familiar with basic legal issues inescapable in a
medium in which every thought can be read by an Internet audience of
The standard for defamatory speech is the same whether the medium is
paper or the Internet.6 A statement is
defamatory if it "tends to harm one's reputation so as to lower him or
her in the estimation of the community or to deter third persons from
associating or dealing with him or her."7
There are three elements to a defamation claim: 1) a false and
defamatory statement concerning another; 2) made in an unprivileged
publication or broadcast to a third party; and 3) with fault amounting
to at least negligence on the part of the speaker.8 Significantly, Wisconsin's retraction statute,
Wis. Stat. section 895.05(2), which requires a person allegedly the
subject of defamation to give a newspaper, magazine, or periodical a
"reasonable opportunity to correct the libelous matter" before the
person commences a civil action, does not apply to speech on the
A public official or public figure10
claiming he or she has been defamed and seeking damages is subject to a
higher standard than a private figure plaintiff. A public figure
defamation plaintiff must prove by clear and convincing evidence, that
the speaker made the allegedly defamatory statement with actual malice -
that is, either with knowledge that the statement was false or with
reckless disregard as to the truth of the statement.11 Proof of actual malice is required because
public officials and public figures have greater opportunities to
effectively counter false statements than do private individuals and,
thus, they must meet a higher standard to prove a defamation
claim.12 The U.S. Supreme Court established
the actual malice standard to reinforce "a profound national commitment
to the principle that debate on public issues should be uninhibited,
robust, and wide open...."13
At the least, blogs raise questions about the traditional definition
for "public figure": will a private individual who happens to be a
widely-read blogger be classified as a public figure in the eyes of the
law?14 For example, since blogs often
discuss other blogs and bloggers, a widely-read blogger may bring a
defamation claim based on false and defamatory statements made by
another in response to the blog.
By their nature, blogs may not fit within the private/public
framework that the U.S. Supreme Court constructed for defamation law
more than 30 years ago. Unlike traditional means of publication and
broadcast - newspapers, magazines, television, and radio - blogs can
help level the playing field for private and public figures. The
distinguishing feature of many blogs is the interactive ability of
readers to post comments in response to blog entries. Since anyone can
start a blog - or respond to a blog posting with his or her own comment
when the blog gives readers that opportunity - the private/public figure
distinction may no longer be as meaningful for defamatory blogs. Indeed,
both private and public figures have the same means and access, at least
on the Internet, to counter false statements.
In John Doe 1 v. Cahill, a recent blogging defamation case,
the Delaware Supreme Court acknowledged the "unique democratizing
medium" of the Internet.15 "Unlike thirty
years ago, when `many citizens [were] barred from meaningful
participation in public discourse by financial or status inequalities
and a relatively small number of powerful speakers [could] dominate the
marketplace of ideas,'" the court wrote, "the [I]nternet now allows
anyone with a phone line to `become a town crier with a voice that
resonates farther than it could from any soapbox.'"16
Blogs also are unique in that, when they allow comments or responses
to a blog posting, the comments or responses are immediately accessible
to the same audience as is the original allegedly false and defamatory
statement. A blogger can respond directly to statements by others and
potentially speak to the same target audience that heard the false and
defamatory speech in the first place.
For now, it is likely that the traditional defamation standards,
including the private/public figure distinction, will continue to apply
to defamation cases involving blogs. The very accessibility of blogs,
however, may lead courts to reevaluate defamation law standards.
The Context of Blogs
The anonymity permitted by the Internet also creates potential legal
issues for blogs. While many bloggers use their real names and
identities, others use pseudonyms, especially when posting comments to
someone else's blog. That leads inevitably to constitutional privacy
questions and practical questions concerning pretrial discovery.
Under what circumstances can the plaintiff "unveil" the anonymity of
a defendant, forcing the disclosure of a defendant's real identity? The
Delaware Supreme Court also addressed this issue in Cahill,
holding that "to obtain discovery of an anonymous defendant's identity
under the summary judgment standard, a defamation plaintiff `must submit
sufficient evidence to establish a prima facie case for each essential
element of the claim in question.'"17 The
context of the allegedly defamatory speech, including "factual and
contextual issues relevant to chat rooms and blogs," was significant in
the court's analysis of the defamation claim.18
The Cahill case involved allegedly false and defamatory
postings on a blog dedicated to the political issues of a Delaware
town.19 The anonymous postings on the
"Smyrna/Clayton Issues Blog" concerned Patrick Cahill's performance as a
city councilman.20 Before filing suit,
Cahill obtained the IP (Internet protocol) address of the anonymous
blogger and, in turn, a court order requiring the Internet service
provider to disclose the blogger's identity.21 The anonymous blogger filed a John Doe action
seeking an emergency protective order to prevent Cahill from seeking his
identity from the Internet service provider.22
The trial court had applied a good faith standard to determine when a
defamation plaintiff can compel the disclosure of an anonymous
defendant.23 That was not sufficient, the
Delaware Supreme Court concluded, because a good faith standard might
still have a chilling effect on speech.24
The court said, "The possibility of losing anonymity in a future lawsuit
could intimidate anonymous posters into self-censoring their comments or
simply not commenting at all."25 The court,
therefore, adopted the higher summary judgment standard, holding that to
obtain discovery of an anonymous defendant's identity the defamation
plaintiff must "introduce evidence creating a genuine issue of material
fact for all elements of a defamation claim within the plaintiff's
control."26 In adopting the higher
standard, the court concluded that it is "the appropriate test by which
to strike the balance between a defamation plaintiff's right to protect
his reputation and a defendant's right to exercise free speech
While the Delaware Supreme Court specifically stated that its
decision did not turn on the fact that the allegedly defamatory speech
appeared in a blog,28 the characterization
and perception of blogs may influence the way courts frame and determine
the legal issues involving blogs. Noting that blogs are "generally not
as reliable as the Wall Street Journal Online," the
Cahill court characterized blogs primarily as a "vehicle for
the expression of opinions" and "not a source of facts or data upon
which a reasonable person would rely."29 A
reasonable person reading blog statements, the court continued, will not
necessarily "assume that the statements are factually based and
researched."30 Accordingly, "[w]hen one
views ... allegedly defamatory statements [in a blog] in context - both
the immediate context and the broader social context - it becomes
apparent that many of the allegedly defamatory statements cannot be
interpreted as stating actual facts, but instead are either `subjective
speculation' or `merely rhetorical hyperbole.'"31
A recent defamation case involving an Internet "gripe" site
emphasizes the significance of the context of the speech at issue. In
Penn Warranty Corp. v. DiGiovanni,32 a disgruntled customer operated a Web site that
criticized a company's products and services. The Web site included
allegations that the company is "blatantly dishonest," is "crooked,"
"has committed `fraud,'" and "has been `running scams,'" and included
facts about the customer's small claims lawsuit against the
company.33 The company filed suit alleging
defamation, among other causes of action. Focusing on the Web site's
"context," the court concluded that the statements were not defamatory,
because, in part, the customer's opinion was accompanied by a recitation
of facts on which the opinion was based. The court noted that the Web
site "presents to others as a personal statement by its maker" and that
"when viewed in its full context," the statements reflect only "personal
In contrast to these courts' characterization of blogs largely as
sources of opinion, not fact, a new ruling by the Federal Election
Commission (FEC) aligns blogs more closely with traditional news media.
On Nov. 18, 2005, the FEC issued an advisory opinion concluding that
blogs operated by Fired Up! LLC (Fired Up) are the "online equivalent of
a newspaper, magazine, or other periodical publication" exempt from
campaign finance limits and regulation pursuant to the statutory press
exemption.35 According to the FEC, the
blogs qualify because their primary function is to "provide news and
information to readers through ... quotes from, summaries of, and
hyperlinks to news articles appearing on other entities' websites [sic]
and through Fired Up's original reporting."36 Furthermore, because Fired Up is not owned or
controlled by any political party, political committee, or candidate,
the costs incurred to operate the blogs are exempt from the definitions
of "contribution" and "expenditure" under the Federal Election Campaign
Act of 1971.37
While the characterization of blogs will continue to be
controversial, each instance of an allegedly false and defamatory blog
posting should be considered within the context of the specific blog at
issue. The Cahill court's casual dismissal of blogs as "merely
rhetorical hyperbole,"38 rather than
statements of fact that can be proven false, ignores the case-by-case
factual inquiry traditionally applied in a defamation case.39 The court's characterization of blogs also
ignores the inescapable reality that blogs are an emerging form of
legitimate and widespread communication of both fact and opinion,40 and that they can cause reputational harm just
like more traditional forms of mass communication.
As corporate, media, and political blogs spread in popularity and if
they prove their reliability, an allegedly defamatory posting may be
viewed differently from the "Smyrna/Clayton Issues Blog" in
Cahill. As with all types of speech, moreover, the courts
probably will view an allegedly defamatory blog posting in its immediate
context - that is, along with other statements in that blog, rather than
in the broader social context of blogs generally. Given their variety,
blogs may defy characterization.
The Communications Decency Act
The Communications Decency Act of 1996 ("section 230")41 is a powerful federal law that may provide
bloggers with some immunity from defamation and other tort actions.
Under the federal statute, "No provider or user of an interactive
computer service shall be treated as the publisher or speaker of any
information provided by another information content provider."42 Accordingly, section 230 "precludes courts from
entertaining claims that would place a computer service provider in a
The statute defines "interactive computer service" as "any
information service, system, or access software provider that provides
or enables computer access by multiple users to a computer server,
including specifically a service or system that provides access to the
Internet...."44 An "information content
provider" is "any person or entity that is responsible, in whole or in
part, for the creation or development of information provided through
the Internet or any other interactive computer service."45
Although no appellate court has directly decided this issue, bloggers
may find some protection under section 230. The unique circumstances of
a blog, however, raise questions about when section 230 immunity may
A blogger can be, simultaneously, a provider and a user of computer
interactive services subject to immunity - as well as the speaker or
content provider potentially liable for the speech on his or her blog. A
blogger is a user of an interactive computer service when she creates a
blog through an interactive computer service, such as www.blogger.com. A
blogger may be a provider of an interactive computer service if she
allows third parties to add comments or other material to her blog. For
example, reader comments or entries by guest bloggers could be
considered information provided by a third party, and the blog host
would not be held liable for defamatory material. However, a blogger is
the speaker, or content provider, when she posts original work or
substantially edits the work of others. When a blogger is acting as a
speaker, moreover, the blogger is almost always potentially liable for
false and defamatory speech.
Section 230 has not yet been judicially construed in the context of a
blog, but the policies underlying Congress's enactment of the law may
encourage courts to extend immunity to bloggers. First, "[s]ection 230
was enacted, in part, to maintain the robust nature of Internet
communication and, accordingly, to keep government interference in the
medium to a minimum."46 Encouraging
"robust" discourse by bloggers, therefore, is consistent with the
purpose of section 230 and, not incidentally, the First Amendment. Yet,
it cannot be said that Congress intended to provide absolute immunity to
those who communicate on the Internet.
Second, "[a]nother important purpose of [section] 230 [is] to
encourage service providers to self-regulate the dissemination of
offensive material over their services."47
Under section 230, a service provider is immune from claims stemming
from "the exercise of its editorial and self-regulatory
functions."48 If section 230 applies,
therefore, a blogger would be encouraged to exercise his editorial
function and remove from his blog potentially defamatory comments made
by third parties.
For bloggers, the primary issue is whether the process of selecting
information for their blogs means that information is still "provided"
to them as required for section 230 immunity. It is not clear whether
section 230 immunity applies to bloggers who actively gather material
and then republish it on their blogs.
The U.S. Court of Appeals for the Ninth Circuit has addressed the
question of when information is "provided" under section 230 in the
context of a listserv. In Batzel v. Smith,49 a third party sent an allegedly defamatory email
to the manager of a listserv, without knowing that the email recipient
operated a listserv and would publish his email. Addressing the meaning
of "provided" under section 230, the court adopted an objective
"[A] service provider or user is immune from liability under §
230(c)(1) when a third person or entity that created or developed the
information in question furnished it to the provider or user under
circumstances in which a reasonable person in the position of the
service provider or user would conclude that the information was
provided for publication on the Internet or other `interactive computer
The Batzel court remanded the case to determine whether the
email was "provided" within the meaning of section 230.51
Assuming other courts follow the Ninth Circuit's lead in
Batzel, the reasonable person standard could provide immunity
to bloggers who actively gather information on the Internet and then
republish it on their blogs. Bloggers have a strong argument that almost
any information posted on the Internet was, by definition, provided for
republication on the Internet and that a blogger should enjoy immunity
for his or her use of that third-party material.
Editing the work of others before republishing it on a blog, however,
may transform the blogger into the speaker and, thus, subject the
blogger to liability for any false and defamatory speech. Precisely when
the transformation from provider to speaker occurs, however, is not
clear. A New Jersey state appellate court recently held that the
operator of a bulletin board Web site was immune under section 230 even
though he edited a message to remove profanity and helped "shape the
content provided by others."52 It remains
unclear whether a blogger exercising similar editorial control should
enjoy section 230 immunity. Undefined as well is the level of editing
that transforms the blogger into the speaker and subjects him or her to
Blogs are changing the way people communicate. By their nature,
however, blogs may not fit neatly in the private/public figure
distinction in defamation law, established more than 30 years ago, or
the framework of the Communications Decency Act, passed fewer than 10
years ago. Although the law has yet to catch up with this new
technology, everyone should be aware of their blogging rights and
responsibilities as well as the rights of those they criticize and
discuss in blogs.
As a practical matter, every blogger should know and understand basic
defamation standards and the parameters of immunity applied pursuant to
section 230. Future blogging defamation cases likely will refine the
parameters for liability and immunity with courts basing their
decisions, at least in part, on the context of the blog at issue.
Until further clarification by the courts, however, bloggers should
"speak" as though they are potentially liable for false and defamatory
speech in their postings, including for other persons' work that is
substantially edited by the blogger. Based on the stated purposes of
section 230, bloggers probably can assume they would enjoy immunity for
republishing, without editing, information found already on the
Internet. Perhaps the best legal advice to bloggers, though, is to know
that the law is becoming aware of the technology, and that courts,
albeit slowly, are beginning to establish the contours of the legal
landscape for blogs.
1In 1998, there were only a
"handful" of blogs. See Rebecca Blood, Weblogs: A History
visited Nov. 28, 2005).
2Carl Bialik, "Measuring the Impact
of Blogs Requires More than Counting," The Wall Street Journal
Online, May 26, 2005,
3John Doe 1 v. Cahill, 884
A.2d 451 (Del. 2005).
447 U.S.C. § 230 (2004).
5See Daniel Lyons, "Attack
of the Blogs," Forbes, Nov. 14, 2005, at 128.
6See Reno v. ACLU, 521
U.S. 844 (1997).
7Stoll v. Adriansen, 122
Wis. 2d 503, 517, 362 N.W.2d 182 (Ct. App. 1984); see
Restatement (Second) of Torts § 558 (1977).
8See Torgerson v.
Journal/Sentinel Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472 (1997)
(also noting that some cases define a defamation claim as containing
9See It's in the Cards Inc. v.
Fuschetto, 193 Wis. 2d 429, 437, 535 N.W.2d 11 (Ct. App. 1995).
10A public figure is "a private
citizen who, by assuming a `role of especial prominence in the affairs
of society ... [has] invite[d] attention and comment.'" Wiegel v.
Capital Times Co., 145 Wis. 2d 71, 81, 426 N.W.2d 43 (Ct. App.
1988) (quoting Gertz v. Welch, 418 U.S. 323, 345 (1974)).
11Torgerson, 210 Wis. 2d
at 535-36; New York Times Co. v. Sullivan, 376 U.S. 254, 279-80
12Gertz, 418 U.S. at
13New York Times, 376
U.S. at 270.
14See Larry E. Ribstein,
University of Illinois College of Law, Initial Reflections on the
Law and Economics of Blogging (2005),
15Cahill, 884 A.2d at
16Id. (quoted sources
17Id. at 463 (quoting
Colgain v. Oy-Partek Ab (In re Asbestos Litig.), 799 A.2d 1151,
1152 (Del. 2002)).
18Id. at 465.
19Id. at 454.
22Id. at 455.
24Id. at 457.
26Id. at 463 (emphasis
27Id. at 460.
28Id. at 465 ("[W]e make
no distinction between communications made on the [I]nternet and those
made through other traditional forms of media in determining the
standard to be applied.").
30Id. at 466.
31Id. (quoting Lyrissa
Barnett Lidsky, Silencing John Doe: Defamation & Discourse in
Cyberspace, 49 Duke L.J. 855, 896 (2000) (citations omitted)).
32Penn Warranty Corp. v.
DiGiovanni, __ N.Y.S.2d __, 2005 WL 2741947 (N.Y. Sup. Ct.
33Id. at *3.
35Federal Election Commission,
Advisory Opinion 2005-16 (Nov. 18, 2005).
37Id. (applying 2 U.S.C.
§ 431(9)(B)(i); 11 C.F.R. §§ 100.73, 100.132).
38Cahill, 884 A.2d at
39See Milkovich v. Lorain
Journal Co., 497 U.S. 1, 21 (1990) (reviewing the "impression" and
"general tenor" of the article to determine "whether a reasonable
factfinder could conclude that the statements ... imply ... that [the
plaintiff] perjured himself in a judicial proceeding.").
40 "Yesterday's Papers," The
Economist, Apr. 23, 2005, at 72.
4147 U.S.C. § 230.
4247 U.S.C. § 230(c)(1).
43Zeran v. America Online
Inc., 129 F.3d 327, 330 (4th Cir. 1997).
4447 U.S.C. § 230(f)(2).
4547 U.S.C. § 230(f)(3).
46Zeran, 129 F.3d at 330
(citing 47 U.S.C.
§ 230(a)(3), (b)(2)).
47Id. at 331.
48Id. at 331 (citing 47
U.S.C. § 230(b)(4)).
49Batzel v. Smith, 333
F.3d 1018 (9th Cir. 2003).
50Id. at 1034 (emphasis
51Id. at 1035. See
Batzel v. Smith, 372 F. Supp. 2d 546 (C.D. Cal. 2005) (on remand,
court granted defendant's motion for summary judgment on res judicata
52See Donato v. Moldow,
865 A.2d 711, 720 (N.J. Super. Ct. App. Div. 2005).