Common Legal Perils of Blogging

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq.

Nina L. Kaufman, Esq., owner of Ask The Business Lawyer, is an award-winning business attorney, speaker, and Entrepreneur Magazine online contributor. She saves consulting and professional services companies time, money, and aggravation by serving as their outsourced legal counsel.

Posted on October 29, 2011 in IP & Social Media

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Think blogging’s all fun and games? Make sure what you’re doing is legal to keep your business and reputation in the clear.

Don’t get me wrong, blogging is a blast. I should know; I have two blogs. The opportunity for expression is limitless–words, photos, videos, audio. Whatever technology develops, you can be sure that people will find a way to integrate it into their blogs.

But let’s not forget that the minute you start placing your thoughts, feelings, epiphanies, rants and other writings online, you become a publisher of sorts. Your reflections are now a matter of public access. So not surprisingly, you’ll have to step gingerly around the legal issues related to blogging–an area very much in flux. What are some of the issues that arise?

One that comes up over and over again is copyright infringement. There’s so much great–and free–stuff on the internet. And look how helpful you can be by putting links to others’ content on your blog. If it’s on the internet, you can use it freely, right?

Wrong. A basic premise of copyright law is, she who creates it owns it and has the right to control its use. This also includes any comments that may be posted to your blog. If you didn’t create it, don’t assume that you have permission to use it, edit it, change it or develop a spin-off of it.

While copyright laws give you a little leeway, known as “fair use,” to use some text, images, audio, links and more, fair use is a sliding scale that isn’t easily defined. What you think is fair could be deemed overuse and, therefore, infringement by the creator and a court. This can even include some forms of linking to pages other than the home page of someone else’s site. You should also remember to give the proper attribution to the creator of the material.

There are a host of other legal issues and questions that arise. For example:

  • Janice reviews food and cooking products on her blog. If she goes overboard in using hyperbole and says something like, “This seasoning is so nasty, you’ll want to puke,” instead of sticking to the facts, she might run afoul of defamation laws. Similarly, if Wanda wants to rail against child labor practices in her blog, she might catch the attention of the major corporations–and their legal departments–she is seeking to vilify.
  • Janice also gets paid for her product reviews as part of a word-of-mouth marketing program. If she doesn’t disclose the fact that she gets paid, her blog readers might be misled about her true objectivity and she might be running afoul of FTC guidelines.
  • Effie blogs about cosmetics–who’s using them, why and how. If her description of a lipstick includes how the woman using it (whose name she divulges) removed her wedding ring and sat lip-locked in a restaurant booth for 30 minutes with a handsome, younger Brazilian with nary a smudge to the color, Effie could be in violation of state privacy laws. Even if the woman were a celebrity, in which case different legal rules can apply, Effie could find herself locked in unpleasant litigation.
  • Kamiko starts a blog called Made in Japan about her experiences being Japanese in the U.S. and doing business with Japanese companies. Unfortunately, her blog and the madeinjapan.com domain name infringe on the trademark of a Japanese manufacturing association.
  • Raisa has a blog for her marketing and PR company, which focuses on children’s products. She’s so busy, she sometimes delegates the posting responsibility to her employee, Carly. Raisa needs to set clear guidelines as to what Carly can and can’t post. For example, Carly may be so excited about a baby carriage manufacturer client’s new product that she blogs about it, but what she says may divulge confidential client information.

For more information and steps you can take to protect yourself, see “12 Important U.S. Laws Every Blogger Need to Know” for a great overview (note the appropriate attribution). Also check out the Electronic Frontier Foundation website; see the “Topics and Areas” listing on the lower right side of the home page. And don’t forget to run your blogging ideas and approach by a qualified attorney to make sure you avoid any legal perils.

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