As the number of blogs has exploded, and more and more businesses add blogs to their corporate communications toolkit, a number of “experts” in social media and search engine optimization have sprung up to advise clients about the best blogging techniques.
Unfortunately, few of them are lawyers, and even fewer have bothered to do their own original research on the legal issues that are unique to blogs – or even the legal issues common to journalists and writers in all fields. I’d not a lawyer, either — but I’ve paid for some of the best legal advice available over many years.
One thing that’s become clear to me is that much of what bloggers think they know about their rights and responsibilities is quite simply wrong.
Already, law firms are springing up to take advantage of this new revenue stream, and bloggers are finding themselves targeted increasingly for copyright infringement, privacy infringement, defamation, and the release of confidential information . Bloggers have lost their jobs, been subjected to arrest, had their computers seized, and been harassed and even physically assaulted by those who disagree with their point of view.
Here are the five primary areas where myths are causing legal problems for bloggers:
- First Amendment questions. Most bloggers assume, as the Electronic Frontier Foundation asserts, that they have the same rights and privileges as print or broadcast journalists, and that reporter shield laws apply universally to bloggers and journalists. This is NOT always the case. There is no universal shield law. Some circuit courts, such as the Fifth Circuit Court which covers Texas, Louisiana, and Mississippi, do not recognize shield laws that protect a journalist’s right to protect an anonymous source. The Fifth Circuit has also stated that only bloggers affiliated with a print or broadcast outlet are journalists.
- Privacy questions. Most bloggers have a very casual acquaintance with the notion of protecting the privacy of others, and think nothing of mentioning, photographing, or linking to Facebook profiles, other blogs, or even the resumes of people they know socially. Suits for invasion of privacy are increasing exponentially, with bloggers a common target. Rule of thumb: get permission before you post identifiable photos of anyone you don’t know — especially children — and remember that laws like HIPAA (which protects the privacy of anyone seeking or receiving medical care) and FERPA (which protects the privacy of anyone attending a public or private school, college, or university) apply to bloggers, too. (These laws are one reason that teachers and healthcare workers are MUCH more likely to be fired or sued over something they posted in a blog or on a social media site.)
- Defamation, disparagement and libel. These three terms each mean different things legally, and the rules for when someone can sue over them vary. What bloggers need to know is simple, though. Posting negative comments or product reviews without understanding the law can be hazardous to your wallet. Bloggers are increasingly being subjected to litigation over “product disparagement” – that is, posting negative consumer-generated reviews of a product or service. Along with libel (the written defamation of a person who is not a public official), and defamation (which can be written, spoken or graphic — a photogaph or video, for example, even if no words accompany it), disparaging people or products is an area of fast-growing litigation. Most courts adjudicating product disparagement lawsuits have assumed that the legal element known as “actual malice” is necessary in the context of product disparagement, but others have ruled that there is no protection for bloggers who express an opinion that is not “provably true” – and just how does one prove that a meal eaten in a restaurant was bad, or that an employee of a store was rude or unresponsive? It’s a lot harder to prove a “fact” than it might seem, and many cases boil down to he said/she said disputes where the two sides present very different accounts of what happened.
- FTC rules on blogger disclosures “only apply to celebrities”. In 2009, the Federal Trade Commission published new guidelines for celebrity endorsements and blogger testimonials and product reviews, which require the full disclosure of links, payments, affiliations, and “material connections” (expanded for the first time in 2009 to include free products). (Few bloggers understand the rules, and how to comply with them. And even fewer PR people and marketing specialists who are targeting bloggers to help them promote goods and services understand the rules and how to comply with them. There is also a requirement that the disclosure must be in the same medium as the endorsement, and other nuances that can be tricky. So if you accept free products, free tickets, or payments to blog about something, consult an attorney about the rules. Nobody needs trouble with the feds!)
- Copyright infringement. What is there to say? There is almost no defense against copyright infringement, and a lawsuit can result in automatic triple damage awards. And the copyright owner gets to decide the value of the copyrighted item. There are copyright trolls out there, just like there are patent trolls, who do nothing but sue for damages. I’ll post a separate article about the five copyright myths that get bloggers in trouble most often.
The bottom line is that what you don’t know about the law can be costly if you’re a blogger. In fact, it’s one of the reasons I held off on starting a blog of my own for so long — I am rather protective of my bank account! You should be, too.