What To Do If Your Company’s Blog Is Subpoenaed

By Mikal E. Belicove|For Entrepreneur.com|October 12, 2010

Earlier this year, the Cleveland Plain Dealer disclosed that a local judge — or somebody using her e-mail account — had been using the newspaper’s comment section to opine on several of the judge’s cases. The judge filed a $50-million invasion of privacy suit, claiming the newspaper violated the site’s terms of service. The suit also sought personally identifiable information for anonymous comments on the website that were critical of the judge.

The ability to post anonymous comments has become a hallmark of the internet. Our tradition of anonymous political commentary dates back to the American Revolution, and courts — including the Supreme Court — have always held that the right to speak anonymously enjoys First Amendment protection. On the other hand, the First Amendment doesn’t extend the same protection to commercial speech. And it certainly doesn’t protect publication of false facts.

Most businesses that maintain blogs don’t have a clue as to what to do if they’re subpoenaed for user information. Enter Damon E. Dunn, a partner with Funkhouser Vegosen Liebman & Dunn Ltd., a firm specializing in media law in Chicago, who talked to me recently about corporate ignorance and subpoenas over blog content. “Anonymous posts that defame, mislead consumers, leak trade secrets or otherwise invade the rights of others — including intellectual property, publicity and privacy rights — are all vulnerable to exposure through subpoenas,” says Dunn.

He suggests businesses review their blog’s terms of service, adding that most terms allow disclosure of personal identification information (PII) in response to an order from the court. Site administrators also have the discretion to alert authorities to threats of physical harm left on a blog in the form of an anonymous comment.

“Ambiguous or inconspicuous terms of service may not shield an Internet Service Provider against a privacy suit from authors who reasonably believed they were promised anonymity,” Dunn warns. “As a result, more sites are requiring users to enter PII before they can post. They can still post the comments anonymously, but the administrator is able to identify the author. Registration has the potential to increase pressure on the ISP to disclose — even though the anonymous authors may think the ISP has undertaken to protect their identities.”

Another option is to require authors to post under their…

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