Common legal perils in publishing a blog

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 December 29, 2013 in IP & Social Media

Don’t get me wrong:  blogging is a blast!  I should know – I have two of them:  Ask The Business Lawyer Blog and Making it Legal.  The opportunity for expression is limitless – words, photos, videos, audio . . . whatever technology can develop, 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 strategies online, you become a publisher of sorts.  Your private reflections are now a matter of public access.  So, not surprisingly, you will now have to step gingerly in and around the legal issues that touch on blogging . . . an area that is very much in flux.  What are some of the scenarios that arise?

One that comes up over and over again is that of copyright infringement.  There is 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!  You’re just going to become the maven of . . . whatever your topic of interest is, aren’t you?  And if it’s on the Internet, you can use it freely, right? 

Wrong.  A basic premise of copyright law is that she who creates it owns it and has the right to control its use.  This includes any user/reader 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 the copyright laws give you a little leeway (known as “fair use”) to use other’s text, images, audio, links, etc., fair use is a sliding scale that is not easily defined.  What you think is fair could well be deemed overuse . . . and, therefore, infringement by the creator (and a court).  Passing off someone else’s work as your own (including some forms of linking to other-than-the-home-page of someone else’s site) is a problem, especially if you don’t give the proper attribution to the creator of the materials. 


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

  • “Janice” reviews food and cooking products in connection with her “Fun with Foodies” blog.  If she goes overboard in using hyperbole (“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 “Shaniqua” wants to rail against child labor practices in her blog, she might catch the attention of the major corporations (and their legal departments) that 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 clash with the Federal Trade Commission 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 an unpleasant litigation.
  • “Kamiko” starts a blog called “Made in Japan,” about her experiences being Japanese in the U.S., doing business with Japanese companies.  Unfortunately, her blog and madeinjapan.com domain name infringe the trademark of a Japanese manufacturing association.
  • “Raisa” has a blog for her marketing and PR company, which focuses on children’s products (especially clothing, toys, and accessories).  She is so busy, that she sometimes delegates the posting responsibility to her employee, Carly.  Raisa needs to set clear guidelines as to what Carly can and cannot post.  Carly may be so excited about a baby carriage manufacturer-client’s new product that she blogs about it; but the timing (and 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 in the lower right hand of the home page).  Plus, there’s my article, “How to Keep Out of Trouble when Blogging for Business”.  And don’t forget to run your blogging ideas and approach by a qualified attorney to make sure you avoid the legal perils!

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