The idea of specific insurance policies for bloggers, as a form of liability insurance to cover defamation cases has been around for some time.

It seems even Jason Calacanis at one time was thinking of entering the market

Domain Name: BLOGGINGINSURANCE.COM
Registrar: AOL, LLC
Whois Server: whois.registrar.aol.com
Referral URL: http://www.registrar.aol.com
Name Server: NS1.WEBLOGSINC.COM
Name Server: NS3.WEBLOGSINC.COM
Status: clientDeleteProhibited
Status: clientTransferProhibited
Status: clientUpdateProhibited
Updated Date: 26-mar-2007
Creation Date: 01-aug-2004
Expiration Date: 01-aug-2008

Whilst Michael Arrington has been throwing a little scorn on the Media Bloggers Association it does seem to have some long standing (3 years) roots and some pedigree.

In an announcement today covering some of the back story of the legal complaint the Associated Press raised with the Drudge Retort, there were some interesting things revealed.

Story Leads

That vital opening paragraph in any article or news item.

• Encourages continued reading when above the fold
• Might be used as a custom excerpt on landing pages (before the jump) to encourage clicks
• Appears in excerpts on socail media aggregators such as Techmeme and Technorati
• If used in a meta description, part of it might appear in search engine results
• It makes an obvious choice for use with social media submissions

Apparently the Associated Press look on their Headline + Story lead as being a core part of their news articles, and reproducing them either exactly or paraphrased might make you liable of copyright infringement.
Creating a news summary based on their coverage containing all the facts might also land you in hot water.

The alternative point of view is very clearly portrayed by Mike Butcher of Techcrunch UK also reported on the main Techcrunch site

Scott Rosenberg puts it differently

The trouble is that fair use law does not, apparently by intention, draw a simple line. It sets up a bunch of criteria that you have to weigh. And so the nightmare reposted-feed site is almost certainly not a fair use. A Digg home page with lots of AP stories? Well, on the one hand Digg is a business that conceivably is taking business value from AP; on the other hand, Digg users rate and discuss stories, so they’re adding them. And AP accounts for only a little bit of Digg’s total volume of stories.

Note: I would have already proposed an “Associated Press Nofollow Plugin” but that is near on impossible – their news stories are syndicated to other sites, and it could be one of 1000s of sites where you first see a story and might give a link. Should bloggers nofollow all newspaper sites? They never or very rarely link to us.

Blogging Insurance

Also included in the article by Robert Cox is the introduction of blogging insurance for members of the Media Bloggers Association.

Cost breakdown

• $25 to join the Media Bloggers Association
• 45 minutes to complete an online course
• $540 for “media Pro” insurance for bloggers earning less than $10,000 per year.

Hang on a second, that isn’t workable

It is impossible to determine earnings from a blog:-

• Direct Advertising
• Affiliate programs
• Membership programs with attached blog or vice versa
• Donations
• Consulting
• Branding and speaking gigs
• Links to other web properties not related to blogging

Robert Scoble, Seth Godin, Jason Calacanis, Matt Mullenweg, Jeff Jarvis and many other top tier bloggers most certainly gain more financial benefit from their personal blogs than I do, yet don’t overtly monetize. Fred at A VC has advertising, and the money is donated to charity.

It was mentioned being “impossible” coming up with $2,000,000 to fund a dedicated service, yet so many VCs benefit from the honest feedback from the blogosphere, and their investments gain so much free coverage, $2,000,000 is just a drop in the ocean, and it would be a viable business, even if it needed to be subsidized a little.

Maybe look on it from the reverse angle – startups looking for coverage by bloggers should contribute to a blogger immunity fund that waives prosecution of bloggers writing about them. That fund could be used to help protect bloggers on all topics, or at least seed such a fund.

If bloggers have strong legal protection from such an organization, big business trying to use SLAPP tactics would be heavily reduced.

Without adequate protection, the whole blogosphere effectively become shills, because they can’t write negative (though constructive) reviews of services for fear of legal action, and even comments on blogs become a legal liability.

Paid review blogging services should also be contributors or offer their own protection

Vlad Is Still Being Sued By ePerks

This isn’t my first mention of Vlad’s ePerks defamation case, I certainly don’t intend to stop.

He has actually updated that post with details of his legal representation -Karl Kronenberger of Kronenberger Burgoyne Internet Law Firm

It is interesting that the EFF have made statements regarding the AP vs Drudge Retort case – surely Vlad’s case deserves some airtime too.

Greg at the Bloodhound Real Estate Blog has been updating on contributions to the legal fund so far – on 16th June is was less than $2000

Thanks to all the contributors, and I am not sure where they have come from as I have personally seen over 30 blog posts.

However my opinion so far – that is pathetic

I encourage people to grab a donation button, and don’t forget to donate (the fund is being run / controlled by Greg Swann at the Bloodhound blog)

Support Vlad Zablotskyy’s Defense Fund Defend your own right to free speech!

I know Vlad is grateful for every contribution – I received a personal thank you email from Vlad showing his appreciation after my donation

It is great to think that all bloggers should already have some kind of business liability insurance, but if you are barely covering hosting costs, or your earnings from blogging are not much more than national minimum wages, the thought of having to hire a lawyer on retainer just doesn’t enter into it.

Your chances of being sued are just as likely on a small blog as one with 100K+ subscribers

Remember I am not a lawyer, and this is a stong opinion piece.

I am trying extremely hard to create an assertion of fact dressed up as an opinion

ePerks Are Suing Vlad

I found out on Saturday from Vlad that he is being sued by ePerks.

Here are the documents served on Vlad.

Just a quick note for anyone who shares this document, it would be well worth modifying it to include some keywords in the links that Scribd inject. I should have also suggested to Vlad that it be prefaced with some links to relevant discussions.

<a href="http://www.scribd.com/doc/3271851/Barabus-vs-Zablotskyy">ePerks - Brabus vs Zablotskyy</a> - <a href="http://www.scribd.com/upload">Upload a doc</a></div><div style="display:none"> Read this doc on Scribd: <a href="http://www.scribd.com/doc/3271851/Barabus-vs-Zablotskyy">ePerks - Brabus vs Zablotskyy</a>

It is interesting to note that for some reason Brabus are looking for punitive damages and claiming malice, and they have confined the case to the way Vlad defended his family name when he was attacked quite viciously on multiple websites suggesting he is/was a paedophile which as far as I know is untrue – Vlad has always come across as a kind and generous person.

This was particularly damaging for Vlad, he writes a pro-life blog, and is in the process of filing for adoption.

Vlad’s post in my opinion, and I have read it at least 20 times, doesn’t seem to directly accuse ePerks of anything, and would only suggest suspicion, but certainly not direct accusation, if the whole situation up until that point was taken into account.

At that time the suspicion was warranted, “Jaffar S” was using the same IP address in comments as people claiming to be ePerks employees, and others posting multiple positive comments, the same IP address range as I previously highlighted being used for ePerks shilling.

76.206.0.160 to 76.206.0.167 – I suggest anyon who has come into contact with ePerks in any way search their databases and email accounts for every IP address in that range – it may be vital evidence.

Ben Behrouzi claimed his company ePerks had nothing to do with the address range, and Vlad posted that information very clearly on his blog.
There was a little confusion though of which Ben might not be aware – though Vlad originally mentioned Texas, the IP range is actually tied to San Francisco and San Jose, where ePerks is located, and that is the area that lots of shill comments originated from as well.

As Trace points out about ePerks

Vlad made no accusations but simply presented anecdotal evidence indicating that ePerks was possibly linked to the false charges

Trace also goes into detail that the papers served on Vlad have no relationship with the previously sent Cease and Desist.

All of this is important, lets take a look at what I didn’t (deliberately) quote from the chilling effects article.

Question: If I write something defamatory, will a retraction help?

Answer: Some jurisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. For example, in California, a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast, or who demands and receives a retraction, is limited to getting “special damages” — the specific monetary losses caused by the libelous speech. While few courts have addressed retraction statutes with regard to online publications, a Georgia court denied punitive damages based on the plaintiff’s failure to request a retraction for something posted on an Internet bulletin board. (See Mathis v. Cannon)

If you get a reasonable retraction request, it may help you to comply. The retraction must be “substantially as conspicuous” as the original alleged defamation.

Vlad very clearly posted the statement on his blog that Ben Behrouzi claimed the attack on Vlad’s character was nothing to do with ePerks.

ePerks – Brabus Ventures are suing Vlad under California law, and my reading of Vlad’s article on IP addresses is that that could be looked on as a very fair statement given equal weight in the public eye, even though (as far as I am aware) no request for a retraction was ever received from ePerks / Brabus Ventures.

In a similar light, ePerks at least on Vlad’s blog might be looked upon as a public figure – they paid him to write about them – one article opened Pandora’s box.

From Chilling effects

A public figure must show “actual malice” — that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.

How Can We Help Vlad?

Spreading the news – this affects all bloggers free speech.

Donations – Greg Swann has set up a donation fund for Vlad

Greg has created some logos / banners / badges along with donation buttons that can be easily syndicated and posted on your blog.

Support Vlad Zablotskyy’s Defense Fund
Defend your own right to free speech!

I might have arranged things and orchestrated things differently, using a dedicated site for the donations, and coordinated the release of information, but nothing can quell the desire to help Vlad in any way people can.

If you have come into contact with Vlad in the blogosphere, or support free speech, or are a parent disgusted at the way false claims can be made against people anonymously, or someone who understands how important a clean reputation is for adoption, you might want to consider a donation.

For bloggers out there, remember to use descriptive anchor text for every link

Blog Posts

I am going to start compiling blog posts of people writing about this horrible situation, especially where they add something significant to the conversation (lawyers, want a link? SEO help?)

Aaron Wall went through this in the past, and has noted that ePerks is going viral (the negative point of view)

Are eperks spammers?, by Lord Matt takes a look at “piles of poo” about ePerks, and a very clear statement of personal opinion from Matt – “I fully believe that Ben Behrouzi of Brabus Ventures (eperks) is both a spammer and an unpleasant human being”- the type of vernacular he normally reserves for the local council and utility companies.

Joe from Sellsius Real Estate is the first lawyer that I am aware to blog about this, and whilst of course this can’t be looked on as legal advice the discussion regarding the long arm of the law and personal jurisdiction in libel cases is extremely interesting.

I never thought I would see the day I would link to Ripoff Report, but someone seems to have listed a complaint about ePerks there. Please don’t add to the report unless your have a genuine complaint about their service.