Legal Issues for Bloggers

By Elspeth Crawford

Before you swipe a Google image for your next post, you might want to read further.

Online Defamation Law

Defamation is a false and unprivileged statement of fact that is harmful to someone's reputation and is published "with fault," meaning as a result of negligence or malice. If the defamed person is a public figure, then the statement must be published with “actual malice”. Posting defamatory content online (p.s., this includes more than blogging) bears the same weight as publishing it in a magazine. Defamation law requires merely that the statement be made to someone who is not the defamed subject of the statement. Be mindful of everything you post about a person. Posting “anonymously” does not protect you, and brings me to my next point.

Blogging Anonymously

If you operate an “anonymous” account, be it a blog or Twitter, you may be surprised to learn it’s not really anonymous. Every move you make online leaves a trail, a very easily accessible trail known as an IP address. If you’re making derogatory comments about someone, all they have to do is look at your IP address and can simply search it (for free) to discover who you are. Then, you could be staring at a cease and desist letter or a lawsuit complaint. Courts are taking a no-nonsense approach to defamatory statements online with the recent tragedies related to cyber-bullying, so: be nice, not naive.

Sharing Content

Everything you blog is protected by copyright. Your text, your images, your graphics, your videos – everything. All online content is copyrighted the second it is published. That makes you, or the author, the copyright owner. If someone uses your content without permission, you may ask them to take it down. If someone uses your content commercially (i.e. makes money from an image you published), you have a right to sue for compensation. However, every image and text and video that you pull off the Internet is copyrighted. This means, for example, if you use a Google image without permission of the author, you may be infringing on a copyright. Even if you link a source back to the author, it could still be copyright infringement. Removing copyrighted content will not remove legal liability. So: ask before taking and protect your own work.

Links

To date, courts have found that permalinks - links that lead readers to an internal page on a website - to web pages constitute neither copyright infringement nor trespass. To be clear, these are NOT source links. No court has enforced a site's terms of use that ban permalinking, so you are safe to use them.

Comments

Bloggers typically retain the discretion to publish comments on their site. When a person comments on a post, in most instances the commenter gives an implied license for the public display of that comment. This license also covers any subsequent copying of the comment. So: don’t write anything as a comment that you don’t want the whole world to see {and remember, commenting anonymously is not actually anonymous}.

Images

As I said above, all images online are subject to copyright unless they fall into a category called “Fair Use” in The Copyright Act (see 17 USC § 107). You may or may not be aware of the legal issues for which Pinterest has come under fire; this is why. Images online are, typically, not in the public domain, and believe it or not, you don’t have the right to use any of them without permission. Public domain includes works and documents produced by the federal government or a governmental agency, legal cases, state and federal statutes, quotations from existing works, and facts or ideas from existing works. So: before you use an image that you have not taken or created yourself, ask the copyright owner.

Advertising

Many blogs involve advertising; ads for companies, other blogs or sites, products, and more. Some blogs offer advertisements for the blog itself. Ads must comply with advertising laws set out by the Federal Trade Commission. The Policy Statement issued by the FTC states that you must have a reasonable basis for your objective claims before you initially disseminate them. Warning: the FTC vigorously enforces the requirement that advertisers must substantiate their express and implied claims, so advertise with caution.

Giveaways

Tons of bloggers use giveaways to reward their readers and increase traffic flow and followers. Most bloggers don’t realize that giveaways can be classified as an illegal lottery. The Federal Communications Commission (FCC) defines a lottery as “any game, contest or promotion that combines the elements of prize, chance and consideration.” In laymen’s terms, if your blog giveaway has a prize which will be won, winner(s) which will be randomly chosen, and a legal contract element known as “consideration” (paying, tweeting, “liking”, or following to enter the giveaway would qualify), then you are successfully running a lottery which is highly regulated at the federal and state level! Not all lotteries are illegal, but lotteries do come with strict rules, guidelines, and penalties. To avoid being heavily fined by the government, ensure that the giveaway guidelines clearly specify: who can enter, the duration of the giveaway, how the winner will be RANDOMLY chosen, consideration required for entry, and the prize.

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