The goal of this post is to expose you to a few potential legal aspects of a blog that you will want to be aware of as you journey into the blogosphere. I want to be very clear in that I AM NOT AN ATTORNEY; yet, do speak often for the legal community about social media. With that said, the goal is to open your mind to legal aspects of a blog so you can have a productive conversation with an attorney before launching your blog. The topics I will cover include overviews of The Communications Decency Act, The Digital Millenium Copyright Act, and disclosure requirements for blogs.
Liabilities
A blog is online editorial. Judges have ruled, however, that blogs do not qualify as journalism. Regardless of first amendment debates, blogs are very visible and can land you in the world of civil law maneuvering much quicker than you think. Furthermore, if your blog has multiple authors, your actions with regard to their content could determine whether you have liability. Before we get into this, we have to understand a couple of key laws that apply to cyberspace. Let’s start by discussing The Communications Decency Act .
The Communications Decency Act
Passed in 1996, The Communications Decency Act (CDA) originally addressed pornography and obscenity online. What is significant about this federal law is Section 230 which provides immunity to Internet Service Providers and Internet Content Providers.
As a blogger, you are held accountable under the law for what you write and are responsibile for respecting the copyrights of others. Section 230 provides you protection from two areas of potential liability, however. The first is from the statements made by people who comment on your blog. If someone posts a comment that is considered slanderous, defamatory, or anything else for that matter, you are not responsible for it as long as you play by the rules. More on that in a moment. The second area is if you host a blog with multiple authors, you are not responsible for their publications. There are some exceptions, however. Before we go there, we have to discuss The Digital Millenium Copyright Act. Let me provide you a quick review. Did I mention that I AM NOT AN ATTORNEY?
The Digital Millenium Copyright Act
Signed into law in 1998 by President Bill Clinton, the Digital Millenium Copyright Act (DMCA) heightened the penalties for copyright infringement amongst other clarifications that have become very important in the copyright world. This law is significant as it gives individuals and corporations alike certain rights as to copyrighted material which includes written copy, digital images, video, and music. Copyright items covered in the DMCA are exceptions to the safe havens provided in Section 230 of The Communications Decency Act.
A Quick Blogger Summary of These Laws
As a blogger, The Communications Decency Act is generally your friend and The Digital Millenium Copyright Act is generally a pain in your side when it comes to photos, vidoes, and other fun things to include on your blog. Clear as mud?
How You Can Stay Out of Trouble?
Without getting really deep into cyberlaw, here are a couple of quick guidelines you can use to reduce your exposure online. The first is respect copyrighted material. Since CDA Section 230 does not provide immunity for copyright violations, this means that the contributions of your guest authors and commenters have to be free of copyrighted material as well. Written copy is fairly easy to deal with as proper sourcing and crediting will help you to avoid problems. Obviously this has to be within reason. You can’t put a chapter of someone’s book online and simply source it! So stick to the same rules you learned in citations for college papers. Keep it to a quote and link back to the source versus thinking you can copy an entire article from someone. Images, music, and video, on the other hand are more complicated. Just because someone has posted an image or video online doesn’t mean that you can just use it.
A couple of guidelines we use on our blogs are:
- Only use videos that explicitly provide embed code and we feel the publisher is the owner of the content.
- Don’t assume that just because it is on YouTube that it hasn’t been illegally posted there.
- License photos from services like “iStockPhot.Com”
- Use a photograph that has a creative commons license
- Ask the owner of the photograph, video, or other copyrighted work for permission.
You should be very cautious with the use of intellectual property which does not belong to you on your blog. It is highly advised that you consult with an attorney if your blog is going to be dependent on video, photos, or other forms of digital intellectual property. Section 230 of The Communications Decency Act specifically excludes digital IP from immunity meaning that if one of your authors uploads a video that they do not own, you ARE NOT immune from this and have liability.
The second quick rule to use in order to maximize your protections under CDA immunity is “keep your hands out of other people’s copy”. I’ll provide an example to explain this. Let’s say a commenter on a blog post of yours calls someone an idiot and then follows it with a couple of obscenities. If you get in and remove the obscenities but post the comment calling someone an idiot, you’ve now had your hands in it. Though case law is all over the map at this point, you could be considered an editor who willfully made the decision to exclude the profanity but include the part calling someone an idiot. The same applies for the works of guest authors. Here are a couple of quick guidelines we use to reduce risk here:
- Limit your actions to Approve or Reject of blog comments. If a comment violates one of our personal policies such as profanity, we simply reject it versus editing it.
- Stick to grammar and spelling edits on guest author posts.
- Any copy added to title and description tags (SEO) is pure cut and paste from the guest author’s original work.
In addition to navigating the world of copyright and CDA immunity, the most important thing you can do as a blogger on your own posts is write responsibly. This doesn’t mean you have to write bland and boring posts with no opinion or flare to them. And even if you write responsibly, you can still find yourself at the center of controversy. Jerod found this out after writing one of the most well researched posts he’s published on MidwestSportsFans.Com. The post was about a baseball player who was off to a great start in this year’s major league baseball season. Due to his age, however, rumors were starting to fly about potential foul play. In his post entitled “The Curious Case of Raul Ibanez: Steroid Speculation Perhaps Unfair, but Great Start in 2009 Raising Eyebrows“, Jerod analyzed several factors about the player’s performance and summarized the article with an opinion. This opinion was quickly misconstrued on Twitter and became the center of controversy in both mainstream media and major league baseball. The player himself threatened legal action against him. In the end, if you publish a researched opinion on the Internet there is some risk as not all will agree with your opinion. Still, we are believers in responsible free speech and encourage all bloggers to do their thing.
Blog Ownership
In terms of your personal liability with a blog, this is where you will have to put your business hat back on. If you are a professional, my advice is to register and pay for all elements of your blog under your corporate entity. If you are a in a professional that is highly sensitive to law suits (e.g. healthcare) you might even consider consulting with an attorney to form a separate entity for your online venture. If you are an individual and do not have a corporate entity, keep in mind that all liability could come back to you. If you are an individual and cannot afford an attorney, do your own homework online and look in your local community for free advice and counseling that is available to small business owners and entrepreneurs.
Disclosure
Another important legal topic for your blog is disclosure. If you want to affiliate market or run impression based ads from Google Adsense, for example, you will likely need to disclose in a privacy policy blog that you are “dropping cookies”. If you have a sponsor, the FTC recently indicated through a unanimous vote on the topic that you will need to disclose your sponsorship associated with the blog post. FTC requirements will become clearer in the future but the botton line is that you will inevitably have some disclosure responsibility on your blog. I will dedicate a post or two in the near future to this topic.
Summary
Did I mention that I AM NOT AN ATTORNEY? I did write this post, however, to open up your business mindset to include the notion that the Internet is not immune to civil nor criminal law. I will be soliciting several guest authors who are attorney’s to write future posts that do cover these topics in depth. Regardless of what we say on this blog, you and your blog have their own unique situation and in the end is YOUR RESPONSIBILITY. Regardless of what we have written above, prior to starting a blog YOU SHOULD consult with an attorney who is knowleable in crafting terms of service, privacy policies, and understands case law related to The Communications Decency Act and The Digital Millenium Copyright Act.
