Agog About BlogsAgog About Blogs

Leib Dodell- Leib Dodell- ModeratorModeratorMedia/Professional InsuranceMedia/Professional Insurance

Chad MiltonChad MiltonMarsh Inc.Marsh Inc.

Jonathan YeisleyJonathan YeisleyAXIS ProfessionalAXIS Professional

David MendelsohnDavid MendelsohnDLA PiperDLA Piper

Remote ParticipantsRemote Participants::Cameron StracherCameron Stracher

New York Law SchoolNew York Law School

2006 International 2006 International ConferenceConference

““In the past two years, more than 50 lawsuits In the past two years, more than 50 lawsuits stemming from postings on blogs have been stemming from postings on blogs have been filed across the nation. This has spawned a filed across the nation. This has spawned a debate over how the ‘blogosphere’ and its debate over how the ‘blogosphere’ and its

revolutionary impact on speech and publishing revolutionary impact on speech and publishing might change might change

libel law.” libel law.”

“Courts Are Asked to Crack Down on Bloggers,” USA Today, Oct. 2, 2006, Page A1

Blog /blBlog /bläg/äg/

n. a Web site that contains an online, chronological, personal journal with reflections, third-party comments, and often hyperlinks provided by the writer or others. Also called Weblog or Web log.

v. to write or post comments on a blog.

Taken From Merriam-Webster Online Dictionary of English

Blogger /blBlogger /bläägg′′əər/r/

n. Someone with nothing to say writing for someone with nothing to do.

Some Facts Some Facts About BlogsAbout Blogs

• There are currently about 58,600,000 active There are currently about 58,600,000 active blogsblogs

• Nearly two new blogs are created every second Nearly two new blogs are created every second (150,000 each day)(150,000 each day)

• The “blogosphere” doubles every six months The “blogosphere” doubles every six months and is 60 times larger than it was three years and is 60 times larger than it was three years agoago

• There are 1.6 million daily postings on blogs There are 1.6 million daily postings on blogs (about 50,000 posts per hour)(about 50,000 posts per hour)

• ““Blog” was the most looked-up word in 2005Blog” was the most looked-up word in 2005

Blogs Have Become Blogs Have Become Legitimate Information SourcesLegitimate Information Sources

• 30% of Americans read blogs30% of Americans read blogs• 52% said bloggers should have same rights 52% said bloggers should have same rights

as traditional journalistsas traditional journalists• Bloggers have broken many recent national Bloggers have broken many recent national

news stories including:news stories including: Dan Rather’s National Guard documentsDan Rather’s National Guard documents Trent Lott’s speech praising Strohm ThurmondTrent Lott’s speech praising Strohm Thurmond CNN Exec.’s resignation after comments about US CNN Exec.’s resignation after comments about US

MilitaryMilitary Exposure of conservative White House reporter Exposure of conservative White House reporter

Jeff Gannon’s “secret life”Jeff Gannon’s “secret life”

Blogs Are Blogs Are a Metaphora Metaphor

“Blogs are the key development at the center of a much wider suite of

innovations that, taken together, are beginning to deliver on the promise of the 1990s. . . .We are now getting the

multimedia, always-on, highly interactive, highly personalized next-generation Web

we imagined a decade ago.”

Blog!, Kline & Burstein, p.xxi (2006)

Questions for Questions for DiscussionDiscussion

• What are some common What are some common characteristics of this new characteristics of this new medium? medium?

• What are the legal implications? What are the legal implications? How have courts responded?How have courts responded?

• What is impact of these changes What is impact of these changes on the professional liability on the professional liability insurance community?insurance community?

Common Characteristics Common Characteristics of Blogsof Blogs

• They can be personal, political, cultural, corporateThey can be personal, political, cultural, corporate• They are globalThey are global

Influential blogs can be found in Hindi,Farsi,Urdu, Influential blogs can be found in Hindi,Farsi,Urdu, Arabic, Japanese, Chinese and KoreanArabic, Japanese, Chinese and Korean

• They tend to be spontaneous/irreverent with little They tend to be spontaneous/irreverent with little if any legal reviewif any legal review

• They encourage self-correction through the They encourage self-correction through the “marketplace of ideas”“marketplace of ideas”

• Related technology includes podcasts, wikis, RSSRelated technology includes podcasts, wikis, RSS

Corporations Corporations and Blogsand Blogs

• May 2005 Business Week cover story entitled: “Blogs Will Change Your Business”

• Examples of corporate blogs: http://www.googleblog.blogspot.com/ http://blogs.asaecenter.org http://www.lexblog.com/ http://www.blogs.sun.com/

• Business-oriented blogging is still in its infancy• Risks of ignoring the blogosphere: $25m

Kryptonite Bicycle Lock Co.

What Are the Legal and What Are the Legal and Operational Risks?Operational Risks?

• Often very little operational controlOften very little operational control• Content deliberately designed to be provocativeContent deliberately designed to be provocative• Immediately widely distributed and searchableImmediately widely distributed and searchable• Legal exposures are similar to those media companies face:Legal exposures are similar to those media companies face:

DefamationDefamation Invasion of PrivacyInvasion of Privacy Infliction of Emotional DistressInfliction of Emotional Distress Copyright Trademark InfringementCopyright Trademark Infringement

• Anonymous postings can lead to subpoenas seeking identityAnonymous postings can lead to subpoenas seeking identity• Potential employer liability for employee blogs, as well as for Potential employer liability for employee blogs, as well as for

distributed contentdistributed content

How Have Courts How Have Courts Responded? Responded?

• Jan. 2006 – First example of court-imposed “Blog Jan. 2006 – First example of court-imposed “Blog Liability” – $50,000 judgment Liability” – $50,000 judgment

• Oct. 2006 – $11.3m judgment in Florida against Oct. 2006 – $11.3m judgment in Florida against bloggerblogger

• Many cases involving anonymous postings – e.g., Many cases involving anonymous postings – e.g., Apple v. DoeApple v. Doe

• There are effective defenses:There are effective defenses: Section 230 of CDASection 230 of CDA Digital Millennium Copyright ActDigital Millennium Copyright Act Anti-Slapp StatutesAnti-Slapp Statutes Shield Laws – What are they and do they protect bloggers?Shield Laws – What are they and do they protect bloggers?

• Does the “self-correcting” nature of blogs make libel Does the “self-correcting” nature of blogs make libel law obsolete? law obsolete?

What are the Risk What are the Risk Management “Best Management “Best

Practices”?Practices”?

• Better education for individual “citizen bloggers”Better education for individual “citizen bloggers”• Corporate bloggers – adopt a policy or guidelines Corporate bloggers – adopt a policy or guidelines

for employeesfor employees• Comply with DMCA – establish a procedure for Comply with DMCA – establish a procedure for

users/viewers to notify you regarding objectionable users/viewers to notify you regarding objectionable contentcontent

• Add DMCA notice to your Terms of ServiceAdd DMCA notice to your Terms of Service• Consider a screening process with respect to new Consider a screening process with respect to new

postingspostings• Consider whether to allow anonymous postingsConsider whether to allow anonymous postings• Of course, review insurance portfolio for possible Of course, review insurance portfolio for possible

coverage gapscoverage gaps

What Are the Insurance What Are the Insurance Implications?Implications?

• For private individuals, to what extent are these For private individuals, to what extent are these issues addressed in a standard homeowner’s issues addressed in a standard homeowner’s policy?policy? Coverage for “personal injury arising out of libel, slander or Coverage for “personal injury arising out of libel, slander or

defamation . . . or invasion of privacy”defamation . . . or invasion of privacy” Exclusion for “business pursuits”Exclusion for “business pursuits”

• Possibility for program of “blogger insurance” – Possibility for program of “blogger insurance” – personal lines meets media liability insurance? personal lines meets media liability insurance?

• Implications for Media CompaniesImplications for Media Companies• ““Main Street” commercial companiesMain Street” commercial companies

Is there CGL coverage?Is there CGL coverage? What about standard Media/E&O/Cyber policies?What about standard Media/E&O/Cyber policies?

• Is there coverage for subpoena defense?Is there coverage for subpoena defense?