Professional Standards And How To Avoid Defamation Suits With Social Media Disclaimers

“This Is Not A Post About Joseph Rakofsky” is both a disclaimer and blog post about competent, dedicated lawyers–models in the profession. The lawsuit and controversy now commonly referred to as Rakofsky v. The Internet is garnering popular press, to be sure. The takeaway lesson in this case (and blog post), however, more subtly concerns rules of libel for social media, disclaimer strategies, or online ethics—as opposed to a young lawyers’ naiveté.

A blog can become a valuable marketing strategy for your firm. But, before you write a legal blog, there are a few details to consider. To avoid falling victim to a similar suit as Rakofsky’s, think about what content, comments, copyright, names, logos, or images may need to be accompanied by a disclaimer.

The Blog Herald provides a variety of model disclaimers for blogs that may prove useful for your firm. For example, is there a single individual who writes for a company blog? If so, you may need a disclaimer like this: “This is a personal website and blog. The opinions expressed here represent my own and not those of my employer.”

The Blog Herald uses the Rutgers Business School Blog disclaimer as a good example: “The opinions expressed by the RBS Student Bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Rutgers Business School or any employee thereof. Rutgers Business School is not responsible for the accuracy of any of the information supplied by the Student Bloggers.”

If the nature of your blog is more controversial, a disclaimer may not be sufficient. In all cases, your attorney authors should read-up on the law regarding libel, defamation, and malice. While it’s fun to criticize certain ill-thought actions of your peers (like Above The Law’s often sardonic nomination of Lawyer of the Month), it’s also important to understand the liabilities and potential for prosecution attached to publishing such articles.

The Electronic Frontier Foundation (EFF) has a Bloggers’ Legal Guide that defines defamation as the following:

“Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published ‘with fault,’ meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.”

The Guide goes on to define the differences between an expressed opinion, a statement of verifiable fact, and the subtleties involved when reporting on private versus public figures. Disclosing exactly who is authoring your blog (or facebook feeds and tweets), including their credentials, background, and remuneration, also gives more credibility to your posts.

Finally, if you’ve just had enough of all this legalese, emulate Valorem Law Group‘s humorous legal disclaimer (via Legal Antics):

Normally we would put this in really small print, but several leading eye physicians have advised us to stick to larger fonts).

We’re lawyers. Although we assume that everyone will understand that the information on this site is intended to make you want to call and hire us immediately, we see that big firms have these fancy disclaimers and we sure like tugging on their capes…. So here goes:

  1. The information on this site (and in the blog) is not intended to create an attorney-client relationship. Frankly, you don’t want it to do so either. Since the site can be viewed by any person on the planet, claiming that we have an attorney client relationship as a result of this site would lead to an immediate claim that you’ve waived the privilege. If you’re crazy enough to want that outcome, we don’t want to be your law firm. Even if you contact us through the site or post a comment to the blog, that does not give rise to an attorney-client relationship either. Don’t you feel better now?
  2. Don’t send us any confidential information until we expressly agree that we have any attorney-client relationship with you. After all, we might have a conflict of interest (given our size, that is pretty unlikely, but you never know for sure). So be smart and safe and keep it confidential until we say it’s okay to send stuff to us.
  3. The sites that we link to via hyperlinks are not under our control. Those sites are responsible for the content of those sites. The sun, the moon and the rotation of the Earth are not under our control either. We’re working on it, but don’t hold your breath, and don’t try to make us responsible for other sites, bad weather, global warming or any malady that befalls you. If you try, we may have to send our crack in-house security team to visit you.
  4. We are normal people, which means we don’t do tax law. Nothing in the site refers to or mentions tax law. If you have a tax question, you’re in the wrong place. Find a tax lawyer. Preferably one with a personality. Again, don’t hold your breath.
  5. The world is an ever-changing place, which means that content can become outdated quickly. While we hope to avoid having outdated material on our site, we can’t guarantee that everything is timely, so don’t rely on the timeliness or accuracy of the information on the site. (Only a lawyer would put out information to impress you and then say “don’t rely on it.” And while we don’t want to come across like other lawyers, we don’t want to have to update our website every night either.)

So there it is. We’ve done the lawyerly thing. Aren’t you glad we got that out of the way. Now back to the revolutionizing of the practice of law.

-WB

For more (serious) information, attend C4CM’s conference “Social Networking, Lawyers, and Ethics: Minimizing the Risk, Maximizing the Benefits.”

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