Every day, millions of bloggers post
content online. Millions more people read and comment on blogs. With
all that communication, some interesting legal issues are bound to
arise. This article looks at 10 major legal points that bloggers must
know and offers some suggestions about how to work with them.
1. Develop a “legal consciousness” about blogging.
Like any publications, blogs frequently create legal questions.
However, there is no need to fear those issues. Instead, being aware of
the possibility of such concerns will help you identify them and manage
them effectively. This article presents some of the most common legal
issues that arise.
As you read it, consider how those issues
apply to your blog. Also, it is good to develop the habit of looking
for legal questions as you post new content on your blog. Using the
major points in this article as a guide, you can ask yourself, “Are
there any potential legal problems here?” whenever you update your
blog. This simple practice will help you identify important legal
questions and resolve them before they have a chance to cause problems.
2. Read carefully and understand the agreements related to your blog.
Depending on how you host, manage, promote, and monetize your blog, the
exact agreements you enter will vary somewhat, but here are some common
agreements that will affect most bloggers:
- Web and blog hosting agreements, including terms of service and acceptable use policies;
- content-sharing agreements and licenses;
- syndication agreements; and
- affiliate, revenue-sharing, and advertising programs.
You
should assume that these agreements are valid, enforceable contracts
that you must follow. Of course, if you have questions about any
agreements or policies or their validity, you should consult with a
lawyer to learn about your rights and duties. However, it is reasonable
to expect that in most cases you will have to abide by these agreements
as you operate your blog, so it is worth your time to become familiar
with them.
3. Adopt basic legal policies for your blog.
Most blogs can benefit from a “terms of use” agreement. This policy
explains how visitors to your blog may use your site and its content.
It is the fundamental agreement between you and visitors to your site.
The particulars of terms of use agreements vary from one blog to
another, but some common provisions include disclaimers of warranties
on any of the content, limitation of the blog publisher’s liability,
restrictions about how the blog’s content can be used, netiquette
policies governing comments posted on the blog, and so forth.
A
privacy policy is also an important document for blogs today.
Participants in blog conversations are concerned about identity theft
and the security of their information. Establishing and following a
privacy policy for your blog assures visitors that their personal
information will be protected and encourages them to join the
discussions at your blog. Here at Daily Blog Tips, Aditya Mahesh
recently outlined the basic points that all good blog privacy policies have. Following those points will give you a great start on developing a privacy policy for your blog.
User-generated
content (UGC) is becoming an increasingly important source of potential
legal disputes. Content-sharing sites may be the most obvious example
of participatory media and UGC, but blogs allow users to generate
content in the form of comments. A useful policy for UGC will answer
the following questions:
- who owns the content that users post?
- how can the blog’s publisher use the UGC?
- how can other users use the content?
- do visitors to the blog have the right to change or remove their content?
- how will you handle UGC that infringes upon another person’s intellectual property rights or is illegal?
- how will disputes over UGC be resolved?
Please
note that the questions listed above are just starting points. A
complete UGC policy will answer those questions and several others that
apply to the particular kind of blog you publish.
4. Protect your copyright in your original work.
Unfortunately, a lot of blog content is being copied and used all over
the Web without the permission of the content’s creators. Preventing
copyright infringement and plagiarism can be difficult and costly, but
there are some simple things you can do to address the problem.
- display a copyright notice conspicuously on each page of your blog;
- register your copyright in your blog with the United States Copyright Office or the copyright registration authority in your country;
- license your work to your blog’s visitors (Creative Commons offers a number of standard licenses that you can use, if you don’t want to create your own from scratch); and
- learn more about the problem of online plagiarism by reading authoritative information, such as Daily Blog Tips’ “Blog Plagiarism Q & A” and Jonathan Bailey’s PlagiarismToday site.
5. Respect others’ content and do not infringe upon it.
You can avoid many disputes in the blogosphere if you respect others’
copyrights and trademarks. Here are a few tips to help you avoid
infringing on others’ intellectual property.
For copyrights:
- assume all content, whether online or offline, is protected by copyright unless you are certain that it is in the public domain;
- get written permission to use copyrighted content and store that writing in a safe place in case you need it later;
- always acknowledge the source of content and, if the copyright owner requests a certain format for the attribution, use it;
- follow best practices related to copyright law; and
- be extremely careful about “fair use” of copyrighted works.
The legal factors that determine whether a given use of copyrighted
content is a “fair use” may look simple and obvious, but they can be
very difficult to apply in practice. If you are unsure about whether
your proposed use is a fair use, consult with a lawyer. Even if you are
sure that you are making fair use of a copyrighted work, you will still
be wise to do everything you reasonably can to obtain written
permission to use that work, to avoid the possibility of disputes later.
For trademarks:
- show the trademark symbol (”®” for registered trademarks, and “TM” for common law trademarks) immediately after the trademark;
- follow the trademark owner’s guidelines for using the mark in blogs and commentary (for an example of such guidelines, see the LEGO® Fair Play policy); and
- do
not suggest that the trademark owner approves of your content, endorses
your site, or is affiliated with you. Instead, display a statement
prominently that says you are not affiliated with the trademark owner
and that the owner has not approved or endorsed your blog or its
content.
6. Before you post statements of fact, be sure those statements are true.
Obviously, very few bloggers will intentionally publish false
information. However, in the rush to cover topics quickly, ahead of
other bloggers and ahead of the mainstream media, bloggers face
increasing pressure to “get it first and get it right.” Unfortunately,
though, sometimes speed comes at the cost of accuracy. Sacrificing
accuracy can cause at least three big problems for the blogger.
First, someone may accuse the blogger of libel because he or she misstated the facts.
Second,
you and your blog will lose credibility. In the short term, lost
credibility may cost you readers and advertisers. In the longer term,
lost credibility may affect your ability to successfully publish other
blogs.
Third, if you are selling goods, services, or information
through your blog, misrepresenting certain facts can subject you to
liability for fraud and violation of applicable consumer protection
laws.
7. Consider special problems that can arise in the workplace.
Several
disputes have arisen between employers and employees over blogging.
Some bloggers have even lost their jobs. There are a few basic rules to
follow in the workplace to avoid problems.
If you are an
employee, don’t blog on your employer’s time or using your employer’s
computer systems or network, unless you have your employer’s explicit
written permission. Such practices are likely against the employer’s
rules and you probably don’t have any legal right to use the employer’s
equipment for personal blogging.
An exception to this general
rule occurs when you are writing content for an official company blog
that your employer sponsors. In that case, you have the employer’s
permission, but you should verify that your blog postings comply with
the company’s policies for online content. If you are not sure about
the applicability of your employer’s policy, ask your manager.
If
you are an employer, make sure your employees understand your company’s
policies about blogging. Your blogging policies should be in writing
and you should ask employees to sign a statement that says they have
read and understood the policy and agree to comply with it. As with any
other policies, you should enforce your blogging policies consistently
and fairly.
8. If you publish a collaborative or group
blog, make sure all the contributors know their rights and
responsibilities concerning the blog and its content. The more
people you have contributing content to a blog, the greater the
potential for disputes. To avoid conflict, it is useful to develop a
written agreement with the other bloggers that addresses, at a minimum,
the following points:
- who owns the copyright to the individual blog posts?
- who owns the copyright to the blog as a whole?
- can individual bloggers republish their blog posts on other blogs or in other publications, whether online or offline?
- under what circumstances may individual bloggers remove their blog posts from the group blog?
- do
bloggers retain any interest in the blog’s content, including in their
individual contributions to it, after they leave the blog?
- who is entitled to revenue that the blog generates?
- who is responsible for paying the blog’s expenses?
- how will disputes among bloggers be resolved?
- how will the various affairs of the blog be concluded if the blog ceases publication?
9. Blog anonymously, if your identity, reputation, or personal safety are at risk.
In some cases, the only reasonable way to communicate your message–and
to make it likely that you will be able to continue blogging–is to blog
anonymously. While some countries, such as the United States of
America, guarantee a legal right to communicate anonymously, exercising
that right on the Internet is not necessarily easy because a blogger
may leave various clues about his or her identity at numerous points in
the blogging process. While a complete discussion of the technical
means to blog anonymously is beyond the scope of this article, here are
two resources that will help you navigate those technical issues.
10. Learn more about the basics of the laws that affect bloggers.
There is much more to the law of blogging than a brief article can
cover. Moreover, as blogging becomes more popular, blogging law is
developing rapidly. Therefore, learning about the legal issues of
blogging is an ongoing process.
Happily, there are several good
resources available to help you stay up to date on legal matters. One
source of information is bloggers’ conferences and conventions. Those
meetings often hold sessions or workshops that present the latest legal
developments that bloggers need to know. Additionally, there are
several online publications that explain the law in much greater detail
and provide a variety of examples to guide you through the legal maze.
Here are a few samples of those texts.
Bonus tip: Get periodic legal checkups of your blog.
Although
this article presents a do-it-yourself approach to identifying and
managing the major legal issues you are likely to face as a blogger,
you can also benefit by having a lawyer conduct a legal checkup of your
blog periodically, perhaps once each year. An increasing number of
lawyers now offer preventive services such as legal checkups and those
preventive reviews can help you identify and correct potential legal
problems with your blog and learn about some of the more recent
developments in the law that concern bloggers.
