Co-Blogging and Cease-and-Desist Letters

Mike Madison published a thoughtful and thought-provoking post the other day on his blog about the effect that a cease-and-desist letter can have on a collaborative blogging (or "co-blogging") relationship. Madison publishes on a number of blogs, one of which is Blog-Lebo, which covers matters of local interest in Mt. Lebanon, Pennsylvania. Madison used to co-run the blog with two other bloggers, but when they got a cease-and-desist letter from a local lawyer, things went slightly pear-shaped. Here's a rough version of the story:

Several weeks ago, Madison posted about a neighborhood dispute that arose when a local homeowner re-landscaped his backyard and blocked (or threatened to block) a stone path that was popularly understood to be protected by a recorded easement. Many readers commented on the post. One commenter identified the homeowner by name and another (apparently one of Madison's co-bloggers) commented that the owner, who is a lawyer, should have known better than to buy real estate without checking the record for easements.

Days later, Madison and his co-bloggers received a letter from the lawyer/homeowner demanding that they remove the post or face a lawsuit for defamation. Madison, a lawyer and law professor experienced in Internet law, was understandably peeved but willing to stand up against what he saw as legally and factually baseless claims. His co-bloggers had a different reaction altogether -- one wanted to take the post down immediately, and the other withdrew from the blog. (It looks like the second co-blogger also withdrew at some point later.) Madison sums up the dilemma he faced as follows:

Blogging lesson number one: All of the noblest rhetoric from Chilling Effects and the EFF and law faculty colleagues is terrific, but it doesn’t mean a lot when your co-blogger turns to jelly. Should lawyers blog with non-lawyers? Maybe not; maybe lawyers simply see the world in a different light. My co-bloggers and I didn’t (and don’t) have a formal co-blogging agreement or liability-shielding arrangement, but even if we had, it’s clear that the dynamic would have played out essentially as it did. We had discussed dealing with hypothetical defamation claims, and I had walked through the immunity analysis under Section 230 of the CDA. All seemed well. But when push came to shove, the non-lawyers got extremely nervous. There was no trust. At that moment, our relative aversion to risk was quite different, and I felt that I couldn’t leave the post up if it meant that my co-blogger would remain frightened.

So down the post came.

Madison not only took down the "offending" post, but ended up suspending Blog-Lebo entirely (see his explanation for the suspension on Pittsblog). The surprise happy ending to the story is that Blog-Lebo's readers clamored for the blog to return, one of Madison's co-bloggers rethought the situation, and the blog is back up. But you can easily envision a less satisfactory conclusion.

The problem identified in Madison's post is not limited to the rare situation where lawyers blog with non-lawyers. It could come up any time collaborating bloggers have different sensitivities to risk, different attitudes toward litigation, or even different time or financial commitments. In the face of a lawsuit, maybe blogger #1 wants to make a statement, and she's ready to go to the wall to stand up for free speech rights. But blogger #2 has a busy schedule and some serious financial obligations. Blogger #3 doesn't like conflict. You get the picture.

I started this post with the intention of giving some pithy advice about how to reduce the likelihood of this kind of problem occuring, but I've reconsidered this approach. There is no legal silver bullet, no magical piece of advice to make this problem go away because its a problem of human difference and personal preference. At best, I can say that bloggers and other creators of citizen media should think about this dilemma before entering into a collaborative arrangement. Are you ready to deal with multiple perspectives when it is your post that is going to be taken down? Are you ready to stand and fight if someone complains about your co-blogger's work?

And if you decide to join forces with others, then there are a host of real legal issues that you need to consider. As Madison points out, Eric Goldman has done some excellent work on the legal aspects of co-blogging (here and here). Some of the key questions include whether you want to form a limited liability entity, whether you should enter into a formal co-blogging agreement, and what effect revenue generation (from advertising, for instance) has on your and your co-bloggers' status as general partners or independent contractors. These are topics that we intend to take up in detail in our forthcoming Legal Guide.

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