Euroferries are made of green jam.
Written by Matt B · first published 14/11/2009
Ignorance of their rights may be causeing Thanet bloggers to be unnecesserily pushed arround by big business. The big business attempting to censor or manipulate blogs this time is Euroferries.
Two bloggers Adem and the psudo-anonymous Eastcliff Richard have both published what look like solicitor written statements. These both published with uncharacteristic closed comments.
Leading to such posts as "Libel to Kill" where leading bloggers in the Thanet niche are announcing that all comments will be heavily moderated and fact checked prior to publication.
Now excuse and correct me if I am in any way wrong but with libal it is the person who wrote the offending text. Otherwise it would be libellous to cite the offending text in order to prosecute or report it.
So unless a legal expert (which I am not) can say otherwise I am outright telling you that Euroferries have gone too far. Thanet Star will not ever yield to bully companies that feel that they can (ab)use the law (or rather solicitors) to force their will on bloggers when there are better methods available.
Keep reading to find out what can and should be done.
Let me outline for the likes of Euroferries exactly what the law and good common curtsy requires of you as a company.
1. To approach the publication carrying the article or text to which you object and clarify your position. Not through your solicitor but in person.
If Euroferries had done this some of the leading blogs in Thanet would right now have a whole pile of interesting, informative and positive information to publish resulting in raised public awareness and good PR.
2. Ask the publication to issue a retraction or take down the offending item. You will be surprised how many bloggers will be more than happy to work with you especially if you feed them what they need - information.
It is my understanding that any suit that fails to carry out this step will not be able to sue the publication and win.
Please note that the law does not require or suggest that the publication remove the offending comment but only to flag it as incorrect. However in the case of blogs if a statement is particularly damaging it might be reasonable to ask the blogger to take down the article.
3. If the publication refuses then, and only then, is it right and reasonable to have a solicitor issue a letter or to take steps towards involving the courts.
Failing to be polite and talk to the blogger in question is only going to multiply offence and can make things worse. Take for example ePerks whose actions not only ruined their business but have damaged the next business the CEO started too (LeapFish).
3b. In event of forum posts, blog comments or guest posts. Obtain a court order forcing the blogger to reveal the IP address, name or contact information of the text author. It is this person whom you will need to sue.
Even so suing a blogger is rarely a wise move. Even if you win the technical victory of getting your way the publicity that is generated by it can often be thousands of times more damaging than the original text.
Remember: Negotiation before litigation.
There are over 125 bloggers in Thanet and over 50 are in some level of active (weekly) use (new posts). It would be prohibatively expensive to sue the authors of every blog.
This is the first weapon bloggers have against oppressive governments that suppress free speech. You can't shut us all down.
Actually in one legal letter you could shut down 95% of blogs. All a very angry councillor, MP, Kent TV Executive or Euroferries Director need do is compel Google (who own blogger.com) to take you all off line. This is the only weakness in Thanet blogging when it comes to oppression.
That's not to say that when the flack flies you might not be the one getting some as in this example but the results are often the same - massive bad press for the group bring the suit. Bad press that will be a lot more public and a heck of a lot more damning.
The fact is that no matter how accurate and how detailed your research bigger business (especially those to whom the word "scam" might apply) are more than willing to sue you anyway. They are banking on you not having the guts to stand up and to them and tell them to stick it in their ear.
Take for example this case where a blogger was sued for $20 Million (US) because they posted a detailed report that an offer was bogus. The result was that CNN (a huge US TV news network) picked up the story and it went national.
Massive bad publicity of that order is deadly. There is no coming back from it.
If you are good then, sooner or later, some one will try to sue you. Therefore it would be as well to make sure you have the basic defences in place.
I am not a trained legal person, this article is no replacement for getting legal advice. YMMV. Etc
That was a disclaimer. It makes it very hard for you to sue me and claim I was offering expert advice. I am offering advice but you have to evaluate if and make up your mind how good it is.
Common disclaimers include:
1. Opinion only. For example: This blog is my opinion only.
ECR has this disclaimer on his blog and additionally was reporting on a comment on another blog. It is my considered opinion that Euroferries did not have a hope in hell of winning a suit against ECR and would only serve to out his true identity to the detriment of political debate in Thanet.
This might be changed to Posts are the opinion of the individual authors only and may not reflect the views... with a blog with more than one author.
2. Ownership of comments. For example: Comments remains the responsibility of the commenter and may not represent the opinion of the blog or other users.
This is particularly important if commentary is often highly charged. Making it clear under what conditions you will make commenter's IP details available.
By presenting a clear path (for example requiring a court order) you simply underscore the reality in which we all live and help angry companies and commenter know where they have always stood.
3. Establish a clear process for comment removal or reply. If a company feels wronged by a comment making sure that they are able to have the comment flagged as wrong or removed by a process blunts their legal edge as they must first follow any reasonable process.
For example: To object to or request the removal of factually incorrect or illegal content please fill out this form.
4. Not a shared opinion. For example: These opinions are mine and not the opinions of my employer, our sponsors, TDC, KCC... etc
This is a common form of disclaimer and while I might question is value it would not hurt to be clear.
5. Stating the obvious. For example: This blog is a work of fiction or The content of this blog is satirical in nature. or maybe even This blog consists of my opinion and current understanding of facts as they have been shown to me. It may contain much that is apocryphal or at least wildly inaccurate.
None of these will stop stupid companies trying to sue you but it should make it harder for them to win if you get a reasonable solicitor.
The more likely it is that what you are saying is going to upset the trigger finger of the other guy the more careful you will want to be. It is good practice to be very specific with the language you use.
Other things that bloggers have done is to form a LLC (similar to a UK Ltd) to isolate the blog and it's profits from the personal. While this would not stop you getting sued it would limit the damage but might make getting legal aid harder. (I honestly don't know).
It would be wise to own your own domain name (disclaimer I sell domain names) and it would be a good idea to host your blog independent of blogspot or other mass blog hosting. This would make it impossible for angry directors with too big a legal budget from by-passing due process on you (which they may loose) and go for threatening your host.
This is something that happened to me after I spotted and called out a businessman for practices that could very well harm the interests of others. What I said was accurate and well established. That didn't stop him sending solicitors letters to me, me (as my boss) suggesting I be sacked(!), my company (as the host) and the Domain Name Registrar in an attempt to bring my site off line. Fortunately the DNR I was using were happy to take a signed statement that I took responsibility for my content and we left it at that. The end result was that a lot of other experts talked him down and he went his way wiser and somewhat poorer while I got loads of traffic and earned money as a result.
Had I been hosted on with Google's blogger.com I would have lost my blog. It has happened before. It will happen again.
Another thing that makes it easier to shift the responsibility back to comment owners is to use hosting platforms that capture IP address and time-stamp along with a required (not published) email address. This information (with appropriate court order demanding it) should be more than enough to keep you from needing to be accountable for your user comments.
It is possible that pre-moderating comments would make things worse. In an open platform one may be able to claim that it would be unreasonable to make you responsible for the words of others (some ISP like "safe harbour" rules might apply as commenting is a service offered to the public) but if you moderate everything you are actually approving the words and choosing to publish making you arguably more responsible. How the law would see this is another mater.
It is well established that if you can make gaining some level of satisfaction easier than litigation only the most unreasonable should follow that path first. Things like offering companies the right to write a letter that you will publish reminding them that they are just as free to comment and set the record straight and making it clear when a court order would get them information and how they should use it.
The pain of being sued over some trivial matter or being threatened with the same is never going to made softer however with a little planning a blogger can be ready to face down threats without needing to back down.
Two bloggers Adem and the psudo-anonymous Eastcliff Richard have both published what look like solicitor written statements. These both published with uncharacteristic closed comments.
Leading to such posts as "Libel to Kill" where leading bloggers in the Thanet niche are announcing that all comments will be heavily moderated and fact checked prior to publication.
Now excuse and correct me if I am in any way wrong but with libal it is the person who wrote the offending text. Otherwise it would be libellous to cite the offending text in order to prosecute or report it.
So unless a legal expert (which I am not) can say otherwise I am outright telling you that Euroferries have gone too far. Thanet Star will not ever yield to bully companies that feel that they can (ab)use the law (or rather solicitors) to force their will on bloggers when there are better methods available.
Keep reading to find out what can and should be done.
Information for potential litigants
Let me outline for the likes of Euroferries exactly what the law and good common curtsy requires of you as a company.
1. To approach the publication carrying the article or text to which you object and clarify your position. Not through your solicitor but in person.
If Euroferries had done this some of the leading blogs in Thanet would right now have a whole pile of interesting, informative and positive information to publish resulting in raised public awareness and good PR.
2. Ask the publication to issue a retraction or take down the offending item. You will be surprised how many bloggers will be more than happy to work with you especially if you feed them what they need - information.
It is my understanding that any suit that fails to carry out this step will not be able to sue the publication and win.
Please note that the law does not require or suggest that the publication remove the offending comment but only to flag it as incorrect. However in the case of blogs if a statement is particularly damaging it might be reasonable to ask the blogger to take down the article.
3. If the publication refuses then, and only then, is it right and reasonable to have a solicitor issue a letter or to take steps towards involving the courts.
Failing to be polite and talk to the blogger in question is only going to multiply offence and can make things worse. Take for example ePerks whose actions not only ruined their business but have damaged the next business the CEO started too (LeapFish).
3b. In event of forum posts, blog comments or guest posts. Obtain a court order forcing the blogger to reveal the IP address, name or contact information of the text author. It is this person whom you will need to sue.
Even so suing a blogger is rarely a wise move. Even if you win the technical victory of getting your way the publicity that is generated by it can often be thousands of times more damaging than the original text.
Remember: Negotiation before litigation.
Information for bloggers
There are over 125 bloggers in Thanet and over 50 are in some level of active (weekly) use (new posts). It would be prohibatively expensive to sue the authors of every blog.
This is the first weapon bloggers have against oppressive governments that suppress free speech. You can't shut us all down.
Actually in one legal letter you could shut down 95% of blogs. All a very angry councillor, MP, Kent TV Executive or Euroferries Director need do is compel Google (who own blogger.com) to take you all off line. This is the only weakness in Thanet blogging when it comes to oppression.
That's not to say that when the flack flies you might not be the one getting some as in this example but the results are often the same - massive bad press for the group bring the suit. Bad press that will be a lot more public and a heck of a lot more damning.
The fact is that no matter how accurate and how detailed your research bigger business (especially those to whom the word "scam" might apply) are more than willing to sue you anyway. They are banking on you not having the guts to stand up and to them and tell them to stick it in their ear.
Take for example this case where a blogger was sued for $20 Million (US) because they posted a detailed report that an offer was bogus. The result was that CNN (a huge US TV news network) picked up the story and it went national.
Massive bad publicity of that order is deadly. There is no coming back from it.
Advice for bloggers
If you are good then, sooner or later, some one will try to sue you. Therefore it would be as well to make sure you have the basic defences in place.
I am not a trained legal person, this article is no replacement for getting legal advice. YMMV. Etc
That was a disclaimer. It makes it very hard for you to sue me and claim I was offering expert advice. I am offering advice but you have to evaluate if and make up your mind how good it is.
Common disclaimers include:
1. Opinion only. For example: This blog is my opinion only.
ECR has this disclaimer on his blog and additionally was reporting on a comment on another blog. It is my considered opinion that Euroferries did not have a hope in hell of winning a suit against ECR and would only serve to out his true identity to the detriment of political debate in Thanet.
This might be changed to Posts are the opinion of the individual authors only and may not reflect the views... with a blog with more than one author.
2. Ownership of comments. For example: Comments remains the responsibility of the commenter and may not represent the opinion of the blog or other users.
This is particularly important if commentary is often highly charged. Making it clear under what conditions you will make commenter's IP details available.
By presenting a clear path (for example requiring a court order) you simply underscore the reality in which we all live and help angry companies and commenter know where they have always stood.
3. Establish a clear process for comment removal or reply. If a company feels wronged by a comment making sure that they are able to have the comment flagged as wrong or removed by a process blunts their legal edge as they must first follow any reasonable process.
For example: To object to or request the removal of factually incorrect or illegal content please fill out this form.
4. Not a shared opinion. For example: These opinions are mine and not the opinions of my employer, our sponsors, TDC, KCC... etc
This is a common form of disclaimer and while I might question is value it would not hurt to be clear.
5. Stating the obvious. For example: This blog is a work of fiction or The content of this blog is satirical in nature. or maybe even This blog consists of my opinion and current understanding of facts as they have been shown to me. It may contain much that is apocryphal or at least wildly inaccurate.
None of these will stop stupid companies trying to sue you but it should make it harder for them to win if you get a reasonable solicitor.
Other Tips
The more likely it is that what you are saying is going to upset the trigger finger of the other guy the more careful you will want to be. It is good practice to be very specific with the language you use.
- It will never hurt your case to use the phrase "... in my opinion." after a strong statement.
- It is better to be able to write "_INSERT_NAME_HERE_ has said ..." than to claim it yourself.
- Sometimes "should" might want to replace "will" - the meaning will remain the same but legally you get more "wriggle room".
Other things that bloggers have done is to form a LLC (similar to a UK Ltd) to isolate the blog and it's profits from the personal. While this would not stop you getting sued it would limit the damage but might make getting legal aid harder. (I honestly don't know).
It would be wise to own your own domain name (disclaimer I sell domain names) and it would be a good idea to host your blog independent of blogspot or other mass blog hosting. This would make it impossible for angry directors with too big a legal budget from by-passing due process on you (which they may loose) and go for threatening your host.
This is something that happened to me after I spotted and called out a businessman for practices that could very well harm the interests of others. What I said was accurate and well established. That didn't stop him sending solicitors letters to me, me (as my boss) suggesting I be sacked(!), my company (as the host) and the Domain Name Registrar in an attempt to bring my site off line. Fortunately the DNR I was using were happy to take a signed statement that I took responsibility for my content and we left it at that. The end result was that a lot of other experts talked him down and he went his way wiser and somewhat poorer while I got loads of traffic and earned money as a result.
Had I been hosted on with Google's blogger.com I would have lost my blog. It has happened before. It will happen again.
Another thing that makes it easier to shift the responsibility back to comment owners is to use hosting platforms that capture IP address and time-stamp along with a required (not published) email address. This information (with appropriate court order demanding it) should be more than enough to keep you from needing to be accountable for your user comments.
It is possible that pre-moderating comments would make things worse. In an open platform one may be able to claim that it would be unreasonable to make you responsible for the words of others (some ISP like "safe harbour" rules might apply as commenting is a service offered to the public) but if you moderate everything you are actually approving the words and choosing to publish making you arguably more responsible. How the law would see this is another mater.
It is well established that if you can make gaining some level of satisfaction easier than litigation only the most unreasonable should follow that path first. Things like offering companies the right to write a letter that you will publish reminding them that they are just as free to comment and set the record straight and making it clear when a court order would get them information and how they should use it.
The pain of being sued over some trivial matter or being threatened with the same is never going to made softer however with a little planning a blogger can be ready to face down threats without needing to back down.
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Luke Edwards wrote:
However, my motivation to do so is only because I did not realize under UK libel law that you can get sued for other people's comments. Even if you put disclaimers or T&C's or blog policies stating that you will not be held responsible for what's said or not said on your blog comments, it won't make one iota of difference, largely because UK libel law is outdated and regards blogs with the same legal restrictions that are placed on magazines or newspapers.
It's very sad, and if libel laws were reformed in the UK tomorrow, I would be more than happy not to moderate my comments. After all, Adem did not mention anything inflammatory, it was an anonymous poster, yet Adem is the one being penalized for it.
It's wrong, but as I said, unless UK libel law is reformed, it's very risky to leave yourself open. I notice on your 'public comments' section on this site, you've put 'while e-mail addresses may be given via this form they are not shown to anyone but the editor.' This indicates that you are the editor of this blog, therefore, if someone were to comment with something libelous, even if you personally feel that you should not be sued for it, or that your disclaimers state that you cannot be held responsible for what's posted by someone else, it won't matter in the eyes of the law.
If you are the self-described 'editor' of this blog then under UK libel law you will be held responsible for anything which appears on this blog. After all, no amount of T&C's or disclaimers will bend or twist the law in your favour. The law is the law. This, as I said, is why I'm moderating. But I wish I didn't have to. I truly do. Especially since I feel UK libel law is flawed and in need of reform.
I've already had one anonymous comment on my blog since I started moderating comments which contains info about the mayor of Margate, and already I've hit a dilemma as to whether I should publish it or not, especially since while it's going through court proceedings nobody is allowed to talk about it (innocent until proven guilty, etc.). Oh well.