Bloggers -- Are you at risk?

The most popular new form of expression may soon become the most dangerous. Weblogs, or “blogs,” as they are called, combine the immediacy of a diary with the gloss of an online magazine, creating a potent brew of reportage, opinion, and gossip. With blog-hosting services like Blogspot available for free, nearly anyone can become a journalist. And therein lies the problem.
According to USA Today, blogs and “bloggers” are “rewriting rules of journalism.” With little editorial oversight, and no pretense at objectivity, bloggers have aggressively pursued certain stories that were initially ignored by the mainstream media. As noted by USA Today, bloggers hounded Senate Majority Leader Trent Lott who remarked, at the birthday party of Senator Strom Thurmond, “that the nation might have been better off had Thurmond won his segregationist campaign for president in 1948,” which led Lott to resign his leadership post. Elsewhere, bloggers disclosed that CBS had relied on forged documents in its exposé of President Bush’s National Guard service, leading to the resignation of an award-winning CBS producer and widespread criticism of Dan Rather.

To paraphrase P.T. Barnum, a blog is born every second. There are millions of blogs, devoted to thousands of topics, from cross-country running to gourmet cooking to energy conservation. According to Technocratic, a search engine that indexes blogs, there are over 35 million blogs, 75,000 new blogs are created every day, and blog traffic continues to double every six months. Most blogs require no knowledge of the complicated protocols of web design — just a keyboard and a dream. Once posted, a blog is instantly accessible to anyone on the Internet. Some of the best-known blogs receive a million or more individual page “hits” each month.

But media experts worry about the dangers blogs pose. “The biggest risk is that there isn’t the normal vetting process,” says Kelly Sager, a Los Angeles media lawyer and partner in the law firm Davis, Wright & Tremaine. A reporter who blogs on his own time may nonetheless expose his employer to unanticipated liabilities. For example, an injured plaintiff might claim that the employer is liable for any damaging statements made by the reporter on his blog. The blog might provide evidence of “actual malice” — a critical element of many libel cases — because the reporter is likely to be less guarded about his statements. The disclosure of information on a blog that is not published elsewhere might waive the privilege journalists normally have not to disclose information they learn in the course of their reporting. In short, according to attorney Sager, blogging puts the reporter in the position of “making decisions about content that the publisher might not make.”

And the issue is not limited to publishing companies. Many non-media companies allow or even encourage employees to maintain blogs. Although few cases have been brought against blogs and bloggers to date, Sager says there has been a great deal of discussion and concern among media lawyers. While companies have begun to embrace blogs, recognizing that it provides another forum for news and information — and appeals especially to a younger demographic — they have been slower in recognizing the associated risks. Many employers may be surprised to learn that their employees’ activities — even if done on their own time — could subject them to liability. Others may not realize that claims arising from blogging may not be covered under traditional insurance policies. One thing however is certain: as blogs proliferate, claims against them will inevitably follow.