There is no way to guarantee you will never get a nasty letter from a lawyer or be sued for what you publish on your blog — but it you want to decrease the chances of having to spend anytime in the company of lawyers, remember this handy IDIOT’s Guide.
I: Get insurance that will cover defamation, invasion of privacy and other risks common to newspapers and other publishers. The best part about insurance is it provides lawyers to defend you against other lawyers.
D: Put a disclaimer on your blog AND on each individual post in compliance with your local law’s requirements. The disclaimer should make it clear the content is solely your personal opinion, and not that of your broker or company. Use an experienced lawyer to draft the disclaimer. Another D: Don’t name names. Instead of Mr. Smith, say “some idiot”.
I: Incorporate. You must keep separate books and records & not commingle personal money or a court can hold you personally liable by “piercing of the corporate veil.” Use a lawyer and an accountant to determine the best type of corporation or other legal entity (LLC, LP, Subchapter S, etc)
O: Make it clear you are only giving your opinion. Repeat that mantra.
T: Tell the truth. Truth is an absolute and complete defense against any libel lawsuit.
DISCLAIMER: This is NOT a legal opinion and you should not rely upon it. Consult an experienced attorney in your state. Besides, you haven’t paid me.
Technorati Tags: law, blogging, insurance, libel, defamation, legal, disclaimer
Someone out there is threatening to sue me. Has been interesting. he sent a note asking me to take something off one of my blogs and I send a note back saying no. He said he is going to sue. Have not hear a word since, it has been 3 or 4 months. I don’t see having blogs as any greater of a risk than being Realtor.
Great article ! I really enjoy reading your posts
Teresa
Few individuals are in a position, or want to blow the money, to hire a lawyer. Retainers are five figures in NYC and no experienced lawyers in this area of law work on a contingency. Some may do it pro bono for a good cause.
The risks come from companies or folks with deep pockets or a lawyer just out of law school (maybe related to the person) who wants to “practice” law on you. Oh yeah, if you rile a person who is a lawyer, that person might sue for spite.
For those of you reading this post, trust me - Joe is dead on!
These tips also come in handy in situations such as when a government employee is pissed off at you and is trying to get you to take down your post (speaking from personal experience).
You never when someone will try and sue you or get your license taken away because of something you posted.
Thanks for posting this Joe!
Joe: Hmmm….Going to check the insurance policies.
Thanks!
Thanks Danilo.
Just read this at The Real Estate Bloggers blog:
“More than 100 judgments valued at $17 million have been handed down against bloggers over the last three years, according to Robert Cox, president of the Media Bloggers Association. Cox said about 60 percent were for defamation, 25 percent for copyright infringement and 10 percent involved privacy.” http://tinyurl.com/6orz2v
And there are the added risks that come via threatened NAR Code of Ethics complaints.
We all gotta blog smart.
Very interesting discussion. I do a lot of blogging and have luckily not encountered any democracies. We do have to be careful though!
I taught a blogging class recently and many of the participants had a fear of being sued I told them that I wouldn’t write anything on my blog that I wouldn’t say to the person invloved in front of a few thousand witnesses. Can’t hide behind the keyboard.
Joe,
Great Interview yesterday, great post today..unfortunately some will listen, most will not and as goes in the re business, many will not want to spend the money necessary to protect themselves and do no look at it as a cost of doing business.
However here’s a hat tip for extending info to those that will.
Great post as I’ve seen a lawsuit just recently.
http://www.inman.com/news/2008/02/1/miami-realtors-condo-blog-landed-him-job-5-weeks
Thanks Barry for being on top of the hot topics. Keep pushing that envelope.
Thanks Jeremy.
Good strategy Monica.
Miami beach– you know someone’s reading your stuff when they sue you.
Joe:
Very smart advice. I take a slightly different view on C & D letters….
I don’t like bullies. I do like embarrassing bullies by publishing their C & D’s or related threats….. It may not be the most efficient or even smart move, but I would like to think that I’m making that bully think twice about harrassing somebody next time because they know their ridiculous demands may be spread around the internet…. or worse will show up when their company or name is googled…..
A special message for you Joe!: http://brokerscience.com/wp-content/uploads/2008/06/publishthem.jpg
In case there were any rumors floating around out there…. I will NOT be heading the how not to get sued panel with Joe…..
Joe; I agree with much of what you say, though I would point out that you and Teresa and I all agree on the main point here - and that is that T (truth) is the biggest protection of all.
The Miami Case was a blogger that misstated a developers financial condition. Had he been accurate in his facts, the outcome of the case would have been difference. ANd to you rother point regarding the attorney who takes the word “practice” in the literal sense, even the best insurance policy may not provide you against some litigation.
Just for giggles and to prove Teresa’s point watch out for my stupid law suit post soon on AgentGenius. So far my biggest problem is choosing which stupid law suits to choose-
I have a bunch to say on this topic, but am saving it for Inman connect.
My simple advice however is to keep all of your content positive. Leave the investigative journal expose’s to the newspaper and concentrate on the positive.
Thanks for the reminder. Has been a couple years sense my last comprehensive insurance review. Need to make sure everything I think is covered still is.
Love that link Trace. I support your right to give the virtual finger to anyone and publish the C&Ds– especially when you’re in the right. But being forced to defend yourself in court is not suited to everyone’s financial or emotional constitution. I have represented clients with rock solid cases (which they eventually won) worry themselves, and their families, sick over the drawn out legal gyrations of a lawsuit. My IDIOT advice is meant to give you some security in the event you want to flip off that bully.
Good move Ken.
Good advice Todd. Glad you’ll be on the panel.
Bill– looking forward to the post.
I hear you loud and clear on that Joe. I have a friend that was recently involved in a small class action suit…. there were a handful of folks involved, not a lot. As the defendant tried to settle, some of the folks in the class were agitated and uncomfortable with even the thought of litigation…. many wanted to jump at a $50k settlement per plaintiff…. needless to say, the group held out and ended up settling for low seven figures per plaintiff…. even that was after one plaintiff jumped the gun in mediation and waivered against the wishes of the other class members and their council… but once they had signaled an OK to the mediator, they were done….
The point is, you are right, publishing a C & D if you can’t stand the heat isn’t a good idea….. and may not be a good idea, period…. but hey, that’s never stopped me from doing anything before!
Bill
On the Miami case there hasn’t been any outcome as of yet.
Actually, the suit is going no where, from what I have heard.
Remember, anybody can sue for any reason–that doesn’t make it true.
Hey Joe!
I think ARDELL’s on the “Don’t get sued” panel.
Yes, Ardell is on the panel
I just recruited Russ Cofano, Esq. for the panel. Russ is a lawyer, blogger and is legal counsel to John L. Scott. He’ll bring a lot to the table.
include a disclaimer on every post?? Dang! isn’t there an easier way?
Joe - this is great advice and I like Todd’s approach too. Would love to hear more about what insurance people are getting - unfortunately not making SF Connect (cause we’re going to Hawaii for 2 weeks
Yes, Ines there is an easier way:
http://tinyurl.com/6fdtmn
Let’s be honest here though, the people that are aggressive enough to sue a blogger based on frivolous claims don’t care whether you have a disclaimer or not. Also, simply putting a disclaimer or statement that “this is opinion” or similar is not going to protect you if you are in the wrong…. just want to throw that out there….
If somebody thinks they have grounds to go after you, they will not think twice about going after you, they are going after you because they think they have legitimate cause…. or because they simply want to harass you….. cases are judged based on cause in fact, not level of disclosure…… so just don’t let disclosure afford you a false sense of protection……if I’m off base, set me straight Joe……
You are dead on Trace. Nothing can insulate you from a lawsuit-bent company or person. The only true prevention is abstinence– don’t write.
But…having insurance and a corporate shell means the other guy spends a lot of money and you don’t. Who’s the idiot then?
Joe,
“Yes, Ines there is an easier way…” and that would be?
Besides not writing what is this easier way?
I think Todd had an excellent suggestion…” Leave the investigative journal expose’s to the newspaper and concentrate on the positive.”
I know that everyone would love to be controversial in their articles but unless you are quoting another source, I think I would steer clear of “outing.”
Looking forward to your panel discussion at Inman.
Hi Gena
By easier way, I meant an easier way to put a disclaimer on your blog posts via the Wordpress Simple Disclaimer plug in (follow the link)
Yes, the easiet way is not to write or, as Todd suggests, keep away from controversial subjects and be positive.
Also, do not name names. I should add that under the D.
thanks for the reminder - I just added it to the footer code of the theme options in wordpress if anyone is using a self-hosted wordpress blog. Simple and clean - I already had the standard MLS disclaimer about “All information deemed reliable but not guaranteed and should be independently verified. All properties are subject to prior sale, change or withdrawal. Neither listing broker(s) nor …..” and I try to keep content positive and non-controversial. Who needs to read more negative news about real estate? We have the national media to do that job ….
I understand why some blogger’s get sued. I mean some people say the stupidest things on their blogs. I think people forget that freedom of speech does have consequences. If you want to stand up and say something negative about someone else, you may have a defamation/slander lawsuit on your hands.
I agree with Monika that if you aren’t willing to stand up in front of a group of 100 people and say what you posted on your blog, then it shouldn’t go into your blog.
Some thoughts are best kept between you and a few friends.
I have been looking into this and spoke with the person today who set up my S Corp last year. Just found this URL for some providers of media liability insurance: http://www.ojr.org/ojr/law/1077147945.php
Thanks for the tip and the link, Arlington RE.
Thanks for the tips…timely reminder. We shouldn’t take this stuff lightly, someone mentioned to me that getting an umbrella insurance policy might be a good idea…look at Vlad, and there are some others in my area. The automatic disclaimer seems easy enough.
It’s amazing how anyone can sue anyone for anything these days. We need to go back to a system where the losing party has to pay for the winner’s legal fees. That would put a stop to a lot of it.
And judges…don’t even get me started. It seems the law is often meaningless in how many judges deem justice should be served. “I know what the law says, sonny. But let me tell you how we’re going to do it in MY courtroom today.”
Wow.
…jp
You MUST be a lawyer, jp
I tend to favor Todd’s approach as well. I know being positive results in less traffic, but the traffic of being controversial is more from the RE.NET, rather than from buyers and sellers. I’ll worry more about my local search results and less about traffic, and staying positive will do just fine in that regard.
I think more important than ALL of the things you highlight here Joe, would be making sure our real estate blogs are legal in the jurisdiction in which they reside. I see many, many, many Arizona blogs that are not be legal in my state. Being legal needs to be #1, because if it isn’t legal, disclosing that it’s our opinion, blah, blah, blah, doesn’t really matter.
I agree 100% Steve. Avoiding controversy is a good formula for lawyer-free consumer success.
That’s interesting– in what respect are the blogs not legal– is it with regard to the MLS or some local laws?
Joe, There are 2 aspects of legal that I’m referring to. The first is fair housing law and the second is commissioner’s standards. Arizona has commissioner’s standards that apply to any real estate website. The standards include reference to fair housing law, but other rules as well. I’m honestly not 100% certain if commissioner’s standards are laws or just standards that if not adhered to can cause loss of license and/or fines. Not a good thing to thumb a finger at, and important enough I consider them law, since I don’t have a license if I don’t adhere.
Understanding your real estate commissioner’s rules, and adhering to them I consider to be paramount to any successful defense if litigation were to ensue. I can see the plaintiff’s lawyer starting the argument with “if John Doe REALTOR doesn’t even adhere to his state commissioner’s rules, how can we…”.
Gotcha, Steve.
Good point. Losing your license over local rules and standards would be worse than a room full of sharks.
All great advice. I like the disclaimer which is a very good idea. Keep up the great work.