Captain’s Blog…

The phenomena of blogging is beginning to attract more interest within business circles. Blog numbers are rising fast, there is increased media coverage and even accountants, lawyers and policemen are blogging.

The term blog is a blend of the terms web and log and can be distinguished from a website in that there is ease of publication and it allows for easy filtering of content for various presentations.

It allows the administrator to invite and add other authors, whose permission and access are easily managed.

All posts (articles) should have permanent links. People can stay informed by what is known as RSS, which is the process whereby people can easily see if updates have been made on the weblog.

So why blog?

Search engine optimisation is crucial for enabling people to link up and find out about people and organisations. As blogs focus often on content and are updated regularly, they are picked up by search engines enabling you to enhance your online presence.

Increasingly all of us are obtaining a ‘google profile’. What type of profile do you or does your organisation have? Due to ease of publication, chances are that someone is going to write about you and/or your firm. Do you wish to influence it?

The capacity of one person to attack a brand, in contrast to the past, where companies might be attacked by other firms or by big media corporations, is now much greater. It is the little man who is capable of drastically affecting a brand.

One example is Jeff Jarvis’ blog, Buzz Machine, which detailed one man’s negative experience with the computer firm Dell.

This obtained not only comments and links but also press coverage, within newspapers and radios.

Companies would be better off not suing individuals as they may not have the funds to pay and might be better advised to both reach out to the consumer community to directly address allegations it feels are unfounded, or work with the disgruntled commentators to find an agreed solution. Blogging however provides the most effective way to reach out to these people.

One of the main benefits of blogging is that it puts you on the road to learning about other interactive media tools such as podcasting and videocasting.

This enables you to experiment with different forms of communication with the online world including potential clients and recruits. For example, the management consulting firm Bain & Co used a 20 minute podcast featuring Bain executives to attract students at the Indian Institute of Management. Pleased with the results, Bain plans to expand its use of podcasts to more universities and other countries next year.

The legal issues related to blogging can manifest within breach of copyright, defamation and interference with the administration with justice.

Breach of Copyright

With the ease with which one can cut and paste on the internet, breach of copyright is a key potential issue for bloggers.

For the copying to constitute an infringement there must have been ‘substantial use’ and this brings into play the issue of what represents copyright infringement and specifically what represents fair dealing.

Fair dealing is permitted with any work for the purpose of criticism and review of that or another work, provided that the work has been made available to the public.

A leading case is that of BBC v BSB Ltd where it was held that showing excerpts from BBC broadcasts of World Cup football matches, to which the BBC had the exclusive broadcasting rights in the UK, represented fair dealing for the purpose of reporting current events. The excerpts varied in length from 14 to 37 seconds and were used in successive bulletins over a 24-hour time-frame following the match. Judge Scott J stated that for the purposes of the Copyright and Designs Patent Act 1988, fair dealing is largely ‘a matter of impression’.

Defamation

Unlike the US, which has constitutional protection provided by the first amendment to the constitution, English and Welsh law has evolved in case law with regard to reporting on matters of public concern or public interest.

Libel occurs when a defamatory statement is published about someone else.

Generally there are three defences to a libel claim namely justification, fair comment and qualified privilege.

An article could attract the protection of the defence of qualified privilege which is laid down in the leading case of Reynolds v The Times Newspapers which was decided in the House of Lords in 1999.

A number of variables can be considered including:

• the seriousness of the allegation;

• the nature of the information, and the extent of which the subject matter is a public concern;

• the source of the information;

• the steps taken to verify the information;

• the urgency of the matter;

• whether comment was sought from the claimant;

• whether the article contained the sense of the claimant’s side of the story;

• the tone of the article.

Interference

Beyond this, webmasters do need to be careful for restrictions on what can be reported in court proceedings. This is particularly relevant to law and accountancy firms that can come across with potentially sensitive facts and are often engaged in the court process.

Webmasters must avoid publications that ‘create a substantial risk that the administration of justice will be seriously impeded or prejudiced’.

This is usually directed at the press prejudicing a jury by introducing facts or material not yet offered into evidence at trial that if publicised would prejudice that trial.

This is a strict liability offence. The blogger’s intention is irrelevant and is not dependent on there being a specific court order in place.

Furthermore, in a relatively recent development, the Courts Act 2003 empowers courts to impose costs upon third parties such as the media where there has been serious misconduct (whether or not amounting to contempt of court) by the media organisations where the court considers appropriate.

Justin Patten is a solicitor