Blogging is long overdue for a few good lawsuits.

While free speech and fair use are legitimate and important legal concepts, what goes on in the blogosphere is all too often well beyond what’s permissible. Bloggers may be guilty of libel, defamation, copyright infringement, invasion of privacy and a number of other crimes. Whether individual cases have merit is a matter for the courts to decide, but the risks of liability present a clear warning for real estate bloggers who operate in ignorance or disregard of the laws that govern free speech and fair use.

Blogging is long overdue for a few good lawsuits.

While free speech and fair use are legitimate and important legal concepts, what goes on in the blogosphere is all too often well beyond what’s permissible. Bloggers may be guilty of libel, defamation, copyright infringement, invasion of privacy and a number of other crimes. Whether individual cases have merit is a matter for the courts to decide, but the risks of liability present a clear warning for real estate bloggers who operate in ignorance or disregard of the laws that govern free speech and fair use.

Real estate is a lawsuit-prone business, though perhaps not much more so than other professional endeavors. Realty brokers and agents are already subject to a long list of potential liability claims that involve such issues as agency disclosures, antitrust, appraisals, buyer representation, breach of fiduciary duty, commission disputes, confidential information, dual agency, kickbacks, minimum-service agreements, misrepresentation, privacy, procuring cause and property defects, among others. Blogging hasn’t been a significant source of lawsuits, but that certainly could change if the current trends in blogging continue unabated.

Two major lawsuits have set the stage for more claims that may follow. A Miami real estate developer filed a $25 million defamation lawsuit against a local real estate agent who wrote a blog about the city’s condo projects. And a former real estate agent-turned-blogger and an online real estate lead generation and referrals service are involved in a bizarre dispute over anonymous posts on other Web sites.

Realtors have contributed their observations, thoughts and expertise to local newspapers, trade journals, community newsletters and the like for decades. And a real estate blog is not much different from those or other publications, apart from the technology and the openness of blogging to anyone who has something (or nothing) to say. Any publication, whether it’s an article or a blog, is guaranteed the basic rights of free speech and expression, but those rights come with responsibilities that need to be taken seriously even when the speech is as short and ephemeral as a blog post.

Real estate blogs, like their brethren in other industries, have come into the mainstream as a swirling mixture of citizen journalism, commentary and commercial speech. Some contain mostly news items; others consist mainly of sales talk; and still others combine facts and opinions. Newspapers have a long tradition of keeping these types of speech separate. Their mixture on blogs isn’t necessarily problematic but does present pitfalls for the unwary real estate blogger.

With the potential for legal trouble in mind, here are a few questions novice realty bloggers may want to ponder:

  • Is your blog accurate or littered with mistakes and misstatements?
  • Have you checked your facts or simply taken what you’ve read elsewhere as true without verification?
  • Have you used information from reliable sources or passed along rumors and gossip?
  • Have you attributed facts to the original and proper sources?
  • Are you prepared to defend your blog or will you try to hide behind anonymity?
  • Have you labeled your own opinions as such?
  • Have you separated paid advertisements from news and editorial content or mingled journalism and commercial speech?
  • Are your comments fair or could what you’ve said be considered libelous or defamatory?
  • Should your blog include only professional communication or personal information as well?
  • Do you have permission to use the content or photos you found online or have you infringed someone else’s copyrights?
  • Is your reliance on fair use doctrine appropriate and permissible or merely a flimsy shield to protect an unfair use?
  • Is your blog your own original work or have you plagiarized someone else’s content?
  • Do you understand the rules or just hope and pray you won’t be caught?
  • Is your blog a credible source of information that will enhance your professional reputation?
  • Are you prepared to act quickly if someone demands a correction or retraction or removal of something on your blog?
  • If you’re sued because of your blog, will your errors-and-omissions insurance policy defend and protect you?
  • Have you discussed your blog with your broker and agreed on guidelines and policies?

The bottom line is that bloggers should be aware that what they write could get them sued. A word written in haste may be repented at leisure, and a picture on someone else’s Web site may not be free for the taking.

To protect yourself, check your facts, identify your sources, qualify your opinions and respect copyrights. If your facts or opinions are challenged, be prepared to respond quickly with an appropriate correction or retraction. Think before you post, and keep writing!

Marcie Geffner is a freelance real estate reporter in Los Angeles and former managing editor of Inman News.

Copyright 2008 Marcie Geffner. All rights reserved. No part of this article may be used or reproduced in any manner whatsoever without written permission of the author.


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