BitcoinExchangeGuide Executive Editorial Team

Generally speaking, online publishers enjoy broad protection under the First Amendment. At least at the time of this writing, a free an independent press is considered a cornerstone of American Democracy, and courts and the law are protective of journalistic activities.

There are, obviously, limits. Maliciously publishing lies or private facts, deceiving the public, and stealing content will result in legal liability. In general, you can reduce your risk by taking the following steps:

1. Fact check.
2. Be fair and accurate in your reporting.
3. Use reliable sources.
4. Cite your sources.
5. Document your research.
6. Seek responses from any person or business being mentioned.
7. Reviews of products should be objective and fact based.
8. Disclose any paid endorsements.

There are a few areas to be aware of as an online publisher: defamation, intellectual property infringement, and privacy issues are at the forefront.

Overview

It is important to note that our legal system allows a plaintiff to bring legal action for almost any reason. Sometimes, this means that big companies with deep pockets or aggrieved individuals with too much time on their hands will sue journalists and publications to harass, silence, or intimidate them. There are some protections from this, but those are obviously not failproof.^[1] Sometimes you will be forced to be strategic about these issues even if you are in the right.

Defamation

Defamation is a cause of action for damage to someone’s reputation. However, not every critical statement about another person or a company is defamatory. The First Amendment protects criticism and opinion, and the public relies on the press to uncover facts that may be uncomplimentary. (Note: both “slander” and “libel” are kinds of defamation. Slander is spoken, libel is in writing.)

In order for a statement to be defamatory, it must satisfy all of the following elements:

1. The statement must be false. If it is true, there is no defamation, no matter how harmful the statement may be.
2. The statement must assert a fact. Opinions are not defamatory. Calling someone a “corporate whore” is offensive, but not defamatory. Stating that a person engages in prostitution (if untrue) is defamatory.
3. The statement must be communicated to a third-party. (Publication is considered “communicated to a third party.”)
4. The statement must be understood to be about the person who is claiming defamation. You don’t have to use a person’s actual name, as long as the statement is clearly about a specific person.
5. The statement it must be harmful to that person’s reputation.

Truth of the statement is an absolute defense to defamation. If the statement you made about the person is true, there is no defamation.

If the statement concerns a public person, that person would have to show you acted with “actual malice” to publish a statement you knew was false. It is slightly easier for a private person to prove defamation, they only need to show that you were negligent, that a “reasonable person” would not have published the statement.

Some statements are “defamation per se”, meaning that they are automatically found to be harmful unless they are true (because if the statement is true, it can’t be defamatory.) These include statements that accuse a person of:

• committing a crime or having been arrested;
• acting immorally;
• being incompetent in their profession;
• committing malpractice;
• engaging in substance abuse; or
• participating in improper sexual activities

To avoid claims of defamation when publishing about people or companies:

1. Fact check any statements that may be harmful.
2. Be fair and accurate in your reporting.
3. Use reliable sources.
4. Don’t hint at or imply harmful facts or information.
5. Don’t couch statements of fact as if they were opinion, as in “It’s my opinion that Joe Shmoe is a murderer.”
6. Cite your sources.
7. Document your research.
8. Seek responses from the person or business being criticized.

When publishing information that is critical of a business or product, be especially aware of the risk that businesses can afford to harass and attack publications and journalists as a strategy to silence criticism. It is particularly important to be fair and accurate if the subject of your reporting has deep pockets or is aggressive about reputation management. However, note that many states, including Nevada and California, have Anti-SLAPP laws^[2], which protect you against lawsuits designed to silence criticism. There is no federal Anti-SLAPP law at this time, and publications are still vulnerable to lawsuits brought in jurisdictions without Anti-SLAPP laws.

User Generated Content and Section 230

Section 230 of the Communications Decency Act provides “safe harbor” to online publishers of third-party content. If you publish user generated content, you will not be held liable for that content, except in the case where you have helped to create the content.

Because of Section 230, BitcoinExchangeGuide.com will not be liable for any defamatory statements made in comments sections, on forums, or in any other user-generated content. Under Section 230, a publisher of third-party content is immune from liability in many circumstances. You will, however, remain responsible for any content that BitcoinExchangeGuide.com directly provides. Section 230 will not protect BitcoinExchangeGuide.com from liability for articles it publishes. Also, if BitcoinExchangeGuide.com adds to or materially alters user-generated content so that BitcoinExchangeGuide.com has effectively contributed to that content, you will lose your Section 230 immunity. For example, publishing a comment thread and then adding your commentary to it may be considered “materially altering” that content such that BitcoinExchangeGuide.com has contributed to or authored some of the material. If user generated content seems defamatory, tread lightly when writing about it.

Note, however, that Section 230 will not protect BitcoinExchangeGuide.com from claims based in criminal law, data privacy, or intellectual property infringement.

Copyright

The Digital Millennium Copyright Act (DMCA) provides specific remedies and strategies to copyright holders, so it is important to avoid infringing on someone else’s copyright.

Copyright protects text, images, art, photographs, sound, video, code, and any other work that is fixed in a tangible format. Copyright protection attaches to a work as soon as the work is created. It is not necessary for a copyright to be registered. Copyright is different than trademark: one way to think of it is that copyright protects content, while trademark protects branding. Note, however, that copyright does not protect facts and it does not protect ideas. Copyright only protects the expression of facts or ideas, meaning, the unique or creative way an idea is expressed. For example, the movie “When Harry Met Sally” is an expression of the idea “boy meets girl”, but “boy meets girl” is an idea that can’t be protected by copyright. BitcoinExchangeGuide.com can safely publish facts that someone else has already published, and it can safely discuss ideas, even if the idea originated elsewhere.

Generally, you should not copy or republish something that someone else created. Many small publications have gotten into expensive situations by grabbing a photo from Google or reprinting someone else’s blog post. Citing the source, linking to the source, or providing attribution does not protect you from infringement claims. Taking down the infringing material will not protect you from infringement claims for the period of time that you infringed. You can, however, under the Fair Use Doctrine, quote small amounts of other people’s work in order to comment on it, criticize it, or report news about it. In addition, carefully review the license of works that are protected by Creative Commons or open source licenses, since those licenses can vary in what they allow or prohibit.

As a journalistic website, you should have a process for responding to claims that your site infringes on someone’s copyright. If you receive a copyright claim, respond quickly. If you ignore claims, you can increase the amount of damages that can be found against you.

DMCA Takedowns

Under the DMCA, an ISP is protected from liability for copyright infringement if it promptly takes down any infringing site that it hosts. Therefore, web hosts often act quickly to take down web sites when they receive DMCA notices. The ISP must give the site an opportunity to respond. If you receive a DMCA Notice, you should evaluate the claim and respond quickly, and communicate with the host of your site, if applicable.

To avoid copyright infringement:

• Do not copy other people’s content, except in small amounts to comment on, criticize, or report on.
• Obtain stock photos or other content from reputable providers.
• Be careful of Creative Commons licenses. Carefully review the license to make sure that the terms permit the use you have in mind and try to confirm that the work is actually covered by a Creative Commons license.
• Do not think that something is in the public domain just because it is publicly available.
• Respond quickly to copyright infringement claims.

Trademark

Trademark infringement is a much lower risk to a publication. Referring to someone’s trademarked product or business name is not a trademark infringement. You can report on products or businesses and use their trademark to do so. Trademark infringement only occurs when you are using someone else’s trademark to sell your goods or services. However, note that trademark law requires a trademark holder to defend their trademark. This often means that trademark holders will be aggressive about use of their trademark, even if your use is not an infringing use.

Publication of Private Facts

Publication of private facts about an individual is actionable as an invasion of privacy, except where those private facts are newsworthy. However, there is no black and white rule to determine when a private fact is newsworthy, and the standard varies from state to state.

In California, an individual can sue for publication of private facts if there has been a (1) public disclosure; (2) of a private fact; (3) that is offensive to a reasonable person; and (4) which is not a legitimate matter of public concern.

If BitcoinExchangeGuide.com is publishing sensitive, offensive, or embarrassing information about an individual, you should be able to justify it as newsworthy. For example, it may be newsworthy that a person running for office has a criminal past. Avoid publishing embarrassing details if they are not relevant to the story or if there is no public interest in publishing those details.

Note however, that this action cannot be brought by corporations or other business entities.

Conclusion

The overarching theme of legal risk for an online publication is that publishing information that harms a person or an entity can be risky, but can also be important and valuable. If the information is fair, accurate, and newsworthy, it will likely be protected by the First Amendment. Putting procedures in place to ensure that content meets these standards is essential. In addition, you should have procedures in place to evaluate whether claims against your publication are valid, because online journalists are particularly vulnerable to harassing and abusive claims meant to suppress unfavorable information. Not every cease and desist or takedown letter requires a response. Having preventative measures and a strategy for dealing with claims will go a long way to reducing the legal risk.

1. See Bollea v. Gawker, the now famous lawsuit brought by Hulk Hogan and financed by Peter Thiel, who did not hide that his goal was to destroy Gawker https://en.wikipedia.org/wiki/Bollea_v._Gawker ↑
2. SLAPP stands for Strategic Lawsuit Against Public Participation ↑