Is your blog a lawsuit magnet?
Perspective: Bloggers need to take responsibility for what they write
By Marcie Geffner, Tuesday, July 1, 2008.
Blogging is long overdue for a few good lawsuits.
While free speech and fair use are legitimate and important legal concepts, what goes on in the blogosphere is all too often well beyond what's permissible. Bloggers may be guilty of libel, defamation, copyright infringement, invasion of privacy and a number of other crimes. Whether individual cases have merit is a matter for the courts to decide, but the risks of liability present a clear warning for real estate bloggers who operate in ignorance or disregard of the laws that govern free speech and fair use.
Real estate is a lawsuit-prone business, though perhaps not much more so than other professional endeavors. Realty brokers and agents are already subject to a long list of potential liability claims that involve such issues as agency disclosures, antitrust, appraisals, buyer representation, breach of fiduciary duty, commission disputes, confidential information, dual agency, kickbacks, minimum-service agreements, misrepresentation, privacy, procuring cause and property defects, among others. Blogging hasn't been a significant source of lawsuits, but that certainly could change if the current trends in blogging continue unabated.
Two major lawsuits have set the stage for more claims that may follow. A Miami real estate developer filed a $25 million defamation lawsuit against a local real estate agent who wrote a blog about the city's condo projects. And a former real estate agent-turned-blogger and an online real estate lead generation and referrals service are involved in a bizarre dispute over anonymous posts on other Web sites.
Realtors have contributed their observations, thoughts and expertise to local newspapers, trade journals, community newsletters and the like for decades. And a real estate blog is not much different from those or other publications, apart from the technology and the openness of blogging to anyone who has something (or nothing) to say. Any publication, whether it's an article or a blog, is guaranteed the basic rights of free speech and expression, but those rights come with responsibilities that need to be taken seriously even when the speech is as short and ephemeral as a blog post.
Real estate blogs, like their brethren in other industries, have come into the mainstream as a swirling mixture of citizen journalism, commentary and commercial speech. Some contain mostly news items; others consist mainly of sales talk; and still others combine facts and opinions. Newspapers have a long tradition of keeping these types of speech separate. Their mixture on blogs isn't necessarily problematic but does present pitfalls for the unwary real estate blogger.
With the potential for legal trouble in mind, here are a few questions novice realty bloggers may want to ponder:
- Is your blog accurate or littered with mistakes and misstatements?
- Have you checked your facts or simply taken what you've read elsewhere as true without verification?
- Have you used information from reliable sources or passed along rumors and gossip?
- Have you attributed facts to the original and proper sources?
- Are you prepared to defend your blog or will you try to hide behind anonymity?
- Have you labeled your own opinions as such?
- Have you separated paid advertisements from news and editorial content or mingled journalism and commercial speech?
- Are your comments fair or could what you've said be considered libelous or defamatory?
- Should your blog include only professional communication or personal information as well?
- Do you have permission to use the content or photos you found online or have you infringed someone else's copyrights?
- Is your reliance on fair use doctrine appropriate and permissible or merely a flimsy shield to protect an unfair use?
- Is your blog your own original work or have you plagiarized someone else's content?
- Do you understand the rules or just hope and pray you won't be caught?
- Is your blog a credible source of information that will enhance your professional reputation?
- Are you prepared to act quickly if someone demands a correction or retraction or removal of something on your blog?
- If you're sued because of your blog, will your errors-and-omissions insurance policy defend and protect you?
- Have you discussed your blog with your broker and agreed on guidelines and policies?
The bottom line is that bloggers should be aware that what they write could get them sued. A word written in haste may be repented at leisure, and a picture on someone else's Web site may not be free for the taking.
To protect yourself, check your facts, identify your sources, qualify your opinions and respect copyrights. If your facts or opinions are challenged, be prepared to respond quickly with an appropriate correction or retraction. Think before you post, and keep writing!
Marcie Geffner is a freelance real estate reporter in Los Angeles and former managing editor of Inman News.
Copyright 2008 Marcie Geffner. All rights reserved. No part of this article may be used or reproduced in any manner whatsoever without written permission of the author.
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Submitted by Jay Seville on July 1, 2008 - 5:16am.
What is disappointing about this post is the lack of recommendations on protecting oneself financially aside from the generic precautions in writing a blog.
For example, some writers might consider moving ownership of their blog into an LLC, S Corp or sub S Corp with hardly so that they no longer own it. The company would have liability insurance to protect and discourage lawsuits and one's personal assets would not be accessible. One needs to consult with an attorney on this matter for sure to make sure it is done right to protect themselves.
If anybody has an referrals on the type of attorney to consult with I'd love to know as I'm looking into the matter.
j
Submitted by Jay Thompson on July 1, 2008 - 6:53am.
I agree that many bloggers (real estate and otherwise) hide behind the blanket of "free speech". I've seen statements like, "it's my blog, I can say whatever I want to".
That's simply asking for trouble.
While there is some probable libel and defamation occurring, far more prevalent in real estate blogging (IMHO) are copyright issues. From the blatant scraping of entire blogsites to photo theft to lack of proper attribution, these issues are apparently grossly misunderstood, or just completely ignored by many.
And that really needs to change.
Jay Thompson
Broker / Owner
Thompson's Realty
Blog: www.PhoenixRealEstateGuy.com
.
Submitted by Hank Perry on July 1, 2008 - 7:47am.
I agree with Jay's comments and I thank Marcia for bringing this forward in a concise way. It seems that there's a sense of security in making comments online that folks might not be inclined to make in person - and that has to change. There's a lot of work to be done to educate our associates so that this media can be used correctly.
Hank Perry
President
Empire Realty Associates
blog:
http://activerain.com/blogs/hankperry
Submitted by Ralph M on July 1, 2008 - 7:55am.
I do not think too many people hear have to worry. The ones hear who post a lot just agree with every writer and say "Great Article".
Not many hear who go against the grain
www.aarsteam.com
Submitted by Marcie Geffner on July 1, 2008 - 8:25am.
Many thanks, Jay and Jay, for your comments. I appreciate the opportunity to respond.
-- Jay S., I certainly understand the attractiveness of offloading liability onto an LLC, and some writers do make that choice. Just to point out the pitfalls, I have to wonder whether that shield gives the writer an unwise sense of comfort that could encourage sloppy writing and taking unreasonable risks. We writers who are personally responsible and don't have any such protection from liablity (or insurance--good luck finding that!) always have that threat hanging over our heads. That's scary, especially since writer's contracts typically assign the rights to the publisher and the liability to the writer. But it's also a very strong motivation to be responsible and think hard about what we write since we have to stand behind it personally. To the point, bloggers need to take that responsibility seriously and they need learn to THINK about what they write. Offloading that responsbility onto an LLC is just another way to avoid that responsibility.
That lack of willingness to THINK for themselves is, I suspect, Jay T, behind the bloggers' astonishing lack of respect for copyright laws. Ignorance is also a factor, but in my experience, much of that ignorance is downright willfull and thus not excusable. Writing is hard work, and a lot of people want the glory without the effort.
I deliberately shied away from the copyright issue in my column because, as longtime readers of my column may know, I'm loath to interject my own personal stuff into my writing. I am not newsworthy.
Since the issue has been mentioned, however, I of course strongly second your call for change on this issue. My articles have been stolen hundreds of times, sometimes with my photo and--weirdly enough--many times the copyright notice has been copied as well. And the excuses I've heard are just ridiculous: The most common (and pathetic) being to blame the Web site designer. Gee, we didn't know we couldn't use that article even though it has a copyright notice right there on our Web site/blog.
My work has also been plagiarized, most recently on Trulia, which has ignored my pleas for action. It's not just bloggers, but also blog platforms and Web 2.0 operators that turn a willful blind eye to copyright infringement.
Bloggers seem to think they aren't hurting anyone and it's only wrong if they get caught. The current state of copyright law supports this by placing the burden on the author or copyright holder to police this issue. What these folks seem not to understand is that the cost to the writer is not only the lost value of the stolen articles, but also attorney's fees and huge blocks of time (in my case, 3-4 hours per week and that's not nearly enough) spent sending "take-down" letters and otherwise dealing with this issue. And, no, I don't find it flattering, as many have suggested I should, that my work is so often stolen.
Cheers,
-- mg
Marcie Geffner,
www.marciegeffner.com
www.marciegeffner.blogspot.com
Submitted by Paul Eastwood on July 1, 2008 - 9:06am.
One bit of good news for Real Estate bloggers is that they don't have to worry about outside comments on their blogs in all of this. Courts have held that comments are the property of those who made them, and the publisher (or blog owner, as the case may be) cannot be held responsible.
Paul
Single Property Sites - Web 2.0 Real Estate Marketing
Submitted by Marcie Geffner on July 1, 2008 - 10:02am.
Paul,
Thanks for your comment.
That may be good news for bloggers, but it's bad news for writers--and that, I might argue, should give bloggers pause.
When my articles are stolen and reprinted as Comments, most of the time I can't identify the person who posted the Comment in order to complain of copyright infringement. Legally, the blogger or Web 2.0 platform may not be responsible for that, but ethically, how is it right for them to ignore that what's posted on their blog or Web site is theft of someone else's work?
For the sake of discussion and not to pick on Trulia:
http://www.trulia.com/voices/profile/Just_Looking-Las_Vegas-205662/
http://www.trulia.com/voices/Foreclosure/Would_now_be_a_good_time_for_an...
Marcie Geffner, www.marciegeffner.blogspot.com
Submitted by REBloggirl on July 1, 2008 - 10:42am.
I am not opposed to any of the advice you so freely dispensed, however I contend that if our blogging forefathers had followed it, blogging would still be some emerging technology for that big bad ‘ol Interweb thing y used by a few thousand geeks contemplating the deeper meaning of the last X-Files episode.
Consider that one of the first blogs to hit the mainstream, the Drudge Report is most famous for being the first news source to break the Monica Lewinsky scandal to the public after Newsweek decided not to publish it. Had Matt followed your rules here- we would not have heard that story and very recent history may be different. It was the freedom from those very rules you mention that are the appeal of the blog medium. Not to say that one can publish slander, but there must be greater latitude in this medium – otherwise you have nothing but another dull website.
That being said, I think a new set of rules are in order- that can bridge the gap between traditional journalistic integrity and ethics with the idea of still being a trailblazer and daring in your content choices - of course I in no way mean "it's OK to lie, steal, cheat defame, slander..." Just think that perhaps these guidelines should be modified to accommodate the fluidity and social aspect of the medium.
Submitted by Matt Carter on July 1, 2008 - 1:03pm.
Over the years, The Drudge Report has also "reported" on a former prostitute's claim that Clinton was the father of her son (hoax), retracted a story that a Clinton assistant was trying to cover up a wife-beating incident, and pulled a story about a supposed John Kerry affair with an intern. A lot of bloggers do good work, but can we find some better examples of people who are pushing the limits of what's legal and ethical on behalf of the greater good?
You can wish for a "new set of rules," but for now bloggers are subject to the same copyright and libel laws as everyone else. Drudge gets away with a lot because he is reporting on public figures, who have limited recourse to collect punitive damages in libel suits. He still gets sued, but there are folks who will pick up his legal tab because he is of use to them.
None of the guidelines Marcie put forward would necessarily have prevented Drudge from going with his Lewinsky "scoop." Truth is always your best defense against libel, and if you are confident that what you are saying is true and it's important to say it, then say it. Just remember that you may still be sued, even when you're in the right. You will prevail, but you may or may not recover your legal costs.
The sad fact of the matter is that most of the libel and copyright problems you see on blogs today stem from ignorance, rather than the burning desire to expose hidden truths to the world. Whether you are a historian or a newspaper reporter or an insurance adjuster or a blogger, gathering and disseminating information is like everything else in life -- it looks easier than it is, and there are little tricks you learn along the way that make you better at it.
To paraphrase Donald Rumsfeld, you need to ask yourself what you know and how you know it (and also know that there are always some things that you don't know). Many people are happy to pass along things they've heard or read without questioning them or attributing their source -- often throwing in their own (often wildly incorrect) assumptions or theories about what's taken place.
The Media Bloggers Association publishes a list of principles for bloggers that's an excellent starting point for doing things right (Here's a crib sheet: State what you know and how you know it. Use links to supporting documents where possible. Credit sources. Don't plagiarize or pass off others' work as your own. Distinguish fact from rumor and speculation. Be intellectually honest when expressing opinion.)
And you know what? You can still have fun working within these guidelines.
Copyright is a whole 'nother can of worms, but basically DON'T STEAL ENTIRE ARTICLES WRITTEN BY OTHER PEOPLE and you'll be fine. You actually have a lot of leeway to quote excerpts of copyrighted material as long as you're commenting on it (see Mark Glaser's recent post at Mediashift on the dustup between the Associated Press and a blogger linking to their stories). The Stanford Center for Internet and Society's Fair Use Project is another place to educate yourself about Fair Use provisions of U.S. copyright law.
Submitted by Marcie Geffner on July 1, 2008 - 1:17pm.
Thanks, Matt. Well said, and I agree 100%.
Submitted by Jay Thompson on July 1, 2008 - 1:41pm.
Marcie wrote, "Ignorance is also a factor, but in my experience, much of that ignorance is downright willfull and thus not excusable."
Agreed. My content gets stolen all the time. I've had people tell me (argue with me actually), "but it's on the Internet, so it's OK to take it!" And they seem to honestly believe that it's OK to take someone's writing and pass it off as their own.
What get's me is my children learned not to do this is in second grade...
I've also had people tell me, and you can't make this stuff up, "I just don't have time to write, and I really liked your answer."
That's supposed to make me feel better?
Take a "fair use" snip and attribute the source and I'm prefectly fine with that. But take the whole freaking article, and CHANGE THE NAME TO YOURS because "you don't have time" to write it yourself?!? I think not.
Jay Thompson
Broker / Owner
Thompson's Realty
Blog: www.PhoenixRealEstateGuy.com
.
Submitted by Althea Garner on July 1, 2008 - 9:43pm.
All excellent comments and I love the one that said that his content gets stolen all the time - so does mine! [sigh!]
There is a fine line between 'Freedom of Speech' and libel (defined as "defamation by written or printed words, pictures, or in any form other than by spoken words or gestures.")
Many bloggers believe that they can say what they want and be protected under 'Freedom of Speech', however this is only true if they stipulate that their comments are in fact their OPINION.
Anyone is entitled to their opinion, but they may not make statements without foundation - this is grossly abused on the Internet where it is all too easy to pass comment.
With regard to Real Estate, we all have opinions, however the public at large tend to take what they read as factual, and they act upon it. Losses that may occur as a result of acting upon written and/or public statements, can indeed, be followed by lawsuits and for this reason, many novice writers tend to simply copy and paste that which has been written by others. It's safer for them to do so because when the proverbial poop hits the fan, they can pass the buck!
What they don't realize is that by duplicating another's copy, not only are they infringing copyright law, they are shooting themselves in the foot as far as credibility is concerned (not to mention the fact that the Search Engine Spiders penalize them for doing this)!
Is it so terrible to quote the source of one's copy? I mean, if you are going to plagiarize, then at least give kudos to the originator, right?
Does it take that long to ask permission to publish, that permission is not requested, or do so many believe that it is easier to ask for forgiveness than for permission?
Then there are the disclaimers...... "The above copy is the merely the opinion of the writer. Consumers are advised to consult with their industry experts before investing..." etc.
Wouldn't this be a safer bet?
There will always be lazy people trading on the hard work of creative people, but that doesn't make plagiarism right, nor does it mean that we can't ask for retraction or removal of an article.
Intellectual property needs to be protected and IF it is publicised, then credit needs to go back to the originator, WITH permission first!
Blogging has become a popular method of transmitting ideas and in many cases those ideas are contentious. Just because one blogs, doesn't mean to say that one has to play it safe. For example, a good debate is healthy - a flame war is not! Think of the Jerry Springer (cringe) Show..... don't people watch that show just to prove to themselves how normal they are? So the topic is contentious - it still draws ratings and in the blogging sense, ratings can boost one's web site traffic!
Sometimes contentious blog topics can be thought provoking as long as everything is kept in perspective and a flame war does not result. For example, a contentious (or even an interesting topic, such as this one), can attract many commentors and therefore drive traffic to the web sites of those who participate.
I will admit that I am not in agreement with blog owners who refuse to remove comments that ARE libellous, hiding behind 'Freedom of Speech' because much damage is done as a result of malicious commentors, and yes... there ARE those out there!
I think that the golden rule to be observed is: What would happen if everyone did this?
If everyone who submitted Internet articles could answer that question, we might solve the problem.
Submitted by Alex Beattie on July 1, 2008 - 9:44pm.
I love your post. I also think that (unfortunately) the pen (or the keys in this instance) can be much mightier than the sword. I have a difficulty with the notion that someone would 'go after' someone because of their 'blog'
Agreed, plagiarism is abominable and defamation is beneath contempt, however, a 'blog' must be kept in the grey area of the 'free press' laws.
99.9 % of blogs are opinions - maybe even 100 per cent - I, fact check all of them. I think the larger point here is just 'think for yourself' - you can borrow ideas, but if you remember some of our younger days - use 'footnotes' and 'bibliographies' - or in todays world 'hyperlinks' to where the source is... and if you 'don't have anything nice to say, don't say it at all...'
www.alexbeattie.wordpress.com
Submitted by Jason Anderson on July 2, 2008 - 7:48am.
I disagree that blogging would still be stuck in the Stone Age if they followed common sense way back when. The same argument could have been made for newspapers, radio and TV. Perhaps if newspapers actually returned to common sense, they would return to profitability.
I would encourage all business bloggers serious about protecting their online content to consider pre-paid legal services. No, I don't sell it. Yes, I know someone who does. It's an affordable way to cover your butt.
Submitted by Jason Anderson on July 2, 2008 - 7:49am.
Marcie, forgot to thank you for a great article. :)
Submitted by Marcie Geffner on July 2, 2008 - 1:51pm.
Thanks, Althea, Alex and Jason for your comments. Much appreciated.
Marcie Geffner, www.marciegeffner.blogspot.com
Submitted by Kuldip Malhotra on July 4, 2008 - 7:55pm.
As a bloggr myself it is a good reminder what to post ? Free Seech can only protect so much.
Submitted by Lenn Harley on July 7, 2008 - 5:17pm.
If the proposed revision of the copyright laws are enacted, the penalties will be significantly increased including forfeiture of equipment used to commit the crime owned by the person commiting the crime and any person conspiring with the violator by aiding and abetting the violator in the commission of the violation.
Further, copyright violations will be criminilized and enforcement managed by a "copyright czar".
I don't have the time to pursue violators of my written content but I do pursue damage claims against competitors who steal images from my web sites and use them on their web sites.
I don't buy the "my web master did it" excuse either. The owner of the web site is the person who pays.
Lenn Harley
Broker
Homefinders.com
http://www.homefinders.com