Bloggers Tread Treacherous Legal Water

January 5, 2010

in Flying Hell Blog

Recently two travel bloggers – Christopher Elliott (Elliott.org) and Steve Frischling (Flying With Fish) were served subpoenas by Department of Homeland Security agents for posting a Transportation Security Administration (TSA) directive on their blogs. The directive outlined security procedures that were being implemented in response to the attempted destruction of a US airplane via a bomb hidden in a passenger’s underwear. The subpoenas, issued to determine who leaked the directive, ignited a firestorm of protests from fellow travel bloggers. Ultimately the subpoenas were withdrawn. More about the matter can be found here.

The governmental actions caused many bloggers to give pause and think about what they’d do under similar circumstances. What if they posted something on their blogs that led to the government taking action against them? Bloggers don’t have a bevy of corporate attorneys who can be consulted with for advice about the posting of controversial material and provide legal representation when subpoenas are served. The cost of defending oneself can be staggering, a scary thought considering that the vast majority of bloggers don’t make any money for their considerable efforts (myself included – an article written about my websites blared that unfortunate fact to the world: Venting, Yes. Profiting, No.). Bloggers have no shield laws to protect them from having to disclose confidential sources and produce records. Chris Gray Faust adeptly addressed these concerns in her blog (Chris Around The World): In the gig economy, who protects journalist bloggers?  One of the questions she asks is whether a legal defense fund should be established for bloggers.

The plight that Joe Sharkey has recently been facing adds yet another pitfall for bloggers. Sharkey, who writes a business travel column for the New York Times (he wrote the column about my websites that I noted above), also runs his own blog (High Anxiety). He is being sued by a citizen of Brazil for – now get this – offending the country’s honor! Sharkey has been sharply critical of Brazilian authorities for their investigation of a plane crash that he was involved with that resulted in the deaths of 154 people. More information on Sharkey’s suit can be found here.  Similar libel cases against Americans exercising their freedom of speech have been filed in other countries as well.

If travel bloggers can face such legal complications, then anyone running a blog is at risk. On the surface sites such as mine – Flights From Hell and Dinners From Hell – seem pretty innocuous. But I wonder if I can be sued by someone in another country because a particular story that I allowed to be published was critical of that country’s state-run airline industry? Also, if I was to receive a scoop and wanted to post a story about it, how will I know where the legal minefields are unless I was willing to spend a lot of money on an attorney to find out? To top it off, in many cases it’s not even known if laws protecting other media forms even apply to the Internet.

So what’s a blogger to do in the face of potential intimidation and litigation? Bloggers need to support passage of the Senate version of the Free Flow of Information Act (S. 448), commonly known as the Federal Shield Law. Bloggers also need to support passage of The Free Speech Protection Act (S. 449) which would protect the free speech of U.S. citizens by prohibiting enforcement of foreign libel judgments so long as that speech wouldn’t be considered libel under U.S. law.

Groups that champion the interest of bloggers also need to be supported. The nonprofit donor-funded Electronic Frontier Foundation (EFF) is one such organization (they among others aided Christopher Elliott in his battle over the TSA subpoena). Founded in 1990 before the Internet was even heard of, the organization provides pro bono defense of the civil liberties of those involved with cyberspace activities. Cases it has won have set precedents in the uncharted legal territory of the Internet.

While their website says that they “do not have the resources to defend everyone who asks,” Eva Galperin, EFF’s Referral Coordinator, said that any blogger with a legal concern is welcome to contact them. If direct assistance can’t be provided, then other resources can be offered. She suggested that the Bloggers’ Legal Guide on EFF’s website first be consulted before contacting them about a problem.

Recent activities have given bloggers a wake-up call about legal vulnerabilities. This is going to be a growing concern as more and more people use social media for communication, work and personal expression. Legislative efforts to protect online freedom of speech need to be encouraged and supported. We can no longer assume that such protections are automatically provided.

Gregg Rottler

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