To become an MBA member, applicants are required to pass an exam of 20 questions on defamation, copyright and privacy law. The questions are either True/False or Multiple Choice.
If you are a blogger you need to know how to answer these questions.
The test is "easy" for bloggers with backgrounds in this area but many bloggers claim to find the test daunting. Of course, what they really mean is that they do not know the basics of media law and do not want to spend 60 minutes learning about it. The test was designed in conjunction with the course course we developed specifically for MBA members with News University, Harvard Law and the City University of New York Graduate School of Journalism. It takes about an hour and will teach bloggers everything they need to know not just to pass the test but to blog "safely".
What I find surprising is how many bloggers express concern about having to demonstrate a basic understanding of media law in order to become members. Having spoken to thousands of bloggers on this topic over the past five years, I suppose I should not be surprised. Few bloggers understand the basics of media law but almost all bloggers seem to be convinced that (a) they know a great deal about media law; (b) they are so careful in what they publish to their blog that they do not need worry; (c) that if they do get in trouble the blogosphere will rise up and save them.
These discussions usually involve the blogger explaining things like the seemingly widespread belief that "fair use" is blanket immunity from legal action for the re-use of copyrighted material or the notion that using the word "allegedly" or some other qualifier will protect them from a defamation lawsuit. These would-be Perry Masons forget one thing -- you can be 100% in the right and still end up in court. Add to this the near universal delusion that A-List bloggers will ride to the rescue of any blogger who sends out a Legal SOS or that the EFF will rush to take their case and you have a good idea of why bloggers have had judgements brought against them for many millions of dollars (this does not include even more in confidential settlements let along the cost of defending in these cases).
I had "discussions" along these lines with people like Jason Calcanis and Michael Arrington (where discussion=them talking over me) over the AP-Drudge Retort case last June. In their mind -- and that of many other bloggers -- the AP-DR case shows the power of the blogosphere to overwhelm anyone who makes a legal threat against blogger. There are a couple of problems with that. While Arrington, Calcanis, Kos and many others were spouting off on their blogs or on Twitter, the Media Bloggers Association got a lawyer to meet with lawyers from AP and went item by item through the AP complaints and resolved them to the "mutual dissatisfaction" of both parties. AP did not back down because TechCrunch announced a boycott of the AP wire. They settled the case because real people sat down and worked it out. More to the point, while the blogosphere's attention was momentarily riveted to the case, our office received a dozen new cases. I do not recall any of these supposed champions of blogger speech devoting a single pixel to raising awareness of those cases.
The fact of the matter is that the mere act of publishing a blog exposes the blogger to legal risk -- anyone can file a lawsuit regardless of merit. Let's assume for a moment that all legal threats against bloggers are frivolous, cases wholly without merit, meant solely to suppress blogger speech. The goal should then be to put the blogger in the most defensible legal posture before any case gets filed so that if a case is filed it will be much more likely that a motion to dismiss will succeed. Even getting to that point will cost a blogger thousands of dollars. A really good lawyer does not fall out of bed without a $10,000 retainer. How many bloggers are prepared to spend thousands of dollars to file a motion to dismiss -- where the alternative is to proceed to trial? Not many, I can assure you. When you consider the reality that cases are often murky or involve actual wrongdoing by the blogger then you can see that planning on the best case scenario of a successful motion to dismiss is not a wise risk management strategy for self-published online authors (i.e., bloggers).
Some bloggers believe they are "judgement proof". A homeless person might be judgement proof. Anyone with a job, a house, money in the bank, a car or any other physical or financial asset is not judgement proof. Some younger or retired people think that they are safe because they do not have any current income. Think again. Not only are you not judgement proof but since you cannot pay immediately you are putting the person coming after you in a position to harass you for many years to come. Would anyone really want that?
It would seem to me obvious that investing an hour of a blogger's time to mitigate as much as possible the risk of a legal claim against the blogger is a "no brainer". Having worked on hundreds of these cases, I can assure any blogger they will spend a lot more time than that dealing with even the most frivolous legal threat.
To make things as inviting as possible, we've expanded the number of ways bloggers can learn the material they need to know to pass our test:
NewsU Online Media Law: The Basics for Bloggers and Other Online Publishers - a full-fledged, online multimedia course with fun quizzes, interesting case studies and games designed to reinforce the course material in an engaging, immersive learning experience.
Electronic Frontier Foundation Legal Guide for Bloggers - a linear, text-driven course which gets straight to the point; intended for the traditional learner.
Knight Citizen News Network: Top 10 Rules for Limiting Your Legal Risk - a collection of mini-modules on important legal concepts for bloggers with loads of video, well-suited for the visual learner.
There is no "debate" on this point. Bloggers need to know this material. Period. I fully intend to continue to press this point at every available opportunity until the day comes that it is an accepted practice for people to learn a few key concepts on defamation, privacy and copyright before they start to blog not after they get served.
