Blog Laws

Brett Atwood

Litigation Risks

Copyright Infringement Invasion of Privacy Defamation Sexual Harassment Hostile Work Environment Claims Other Legal Risks

Copyright Infringement

Copyrighted content on your blog can result in legal action Example:

ABC vs. “Spocko’s Brain”

“Deep Linking”

The legality is in debate Most courts have found that you can “deep link” into

another person’s content Shetland Times vs. Shetland News Ticketmaster vs. Microsoft Ticketmaster vs. Tickets.com

Breaking News: In Dec. 2006, a new court ruling in Texas found the

opposite SFX Motorsports vs. SuperCrossLive.com

Invasion of Privacy

Disclosure of personal facts that were not previously known to public A public figure has less recourse than a private

citizen Can I be sued?

Perhaps. If it is not deemed “newsworthy” and it causes harm to the individual’s reputation and well-being

Invasion of Privacy

Example: Washingtonienne.com

A woman in Washington D.C. posts details of her “affairs” with prominent political figures

One politician sued for $20 million claiming “invasion of privacy”

Court case is pending

Defamation Defined

A false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice.

State laws often define defamation in specific ways. Libel is a written defamation Slander is a spoken defamation.

Defamation Online

The US Supreme Court has said that blogs have the same protections as traditional media: "in the context of defamation law, the rights of the

institutional media are no greater and no less than those enjoyed by other individuals and organizations engaged in the same activities."

Opinion

The labeling of a blog published statement as “opinion” does not guarantee that it won’t be found to be libelous Courts ask: “Would a ‘reasonable’ person confuse

your statement for fact?” The context of the statement is also examined

Chat rooms and blog “comments” are usually seen as “opinion” by design and are more likely to be exempt from “libel”

Examples of Actual Cases

Considered Libelous (when false): Calling an attorney a "crook" Describing a woman as a call girl Accusing a minister of unethical conduct Accusing a father of violating the confidence of

son

Examples of Actual Cases

NOT Libelous: Calling a TV show participant a "local loser,"

"chicken butt" and "big skank" Calling someone a "bitch" or a "son of a bitch" Changing product code name from "Carl Sagan"

to "Butt Head Astronomer"

Trade Libel

Trade libel is defamation against the goods or services of a company or business. For example, saying that you found a severed

finger in you're a particular company's chili (if it isn't true).

Defamation in Blogs

If you repeat someone else's defamatory statement in your blog, can you be found to be held at the same standard as the original speaker? This would have great implications for

“guestbooks” and “comments” that are left online and/or unmoderated

Defamation Online

Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act Provides a strong protection against liability for

Internet "intermediaries" who provide or republish speech by others.

Section 230 of the CDA

Protects bloggers in most circumstances Bloggers are not liable for defamatory content

written by “third parties” Comments RSS Feeds Chat rooms

This protection does not necessarily apply to you if you hand select and publish the above content

Defamation

$11.1 million awarded in Oct. 2006 in a widely observed suit Largest fine of its kind A woman posted negative comments about a

business owner after their transaction went bad Used terms “crook,” “con artist” and “fraud”

Sexual Harassment

27 workers fired for sexually-charged blogs and postings on MySpace The Auto Club of Southern California employees

made comments about weight and sexual orientation of other workers through their postings and “Friends” comments

Security Breaches

Loss of Trade Secrets Confidential Information Intellectual Property

Apple vs. Does

Apple Computer sued various blog and indie news sites to reveal the source of leaked “trade secrets” relating to a music project The “Does” are “John Does”

They are the unknown parties that leaked the documents

Apple vs. Does

Apple attempted to subpoena the ISP to give up the e-mail records of those involved

A court ruled that the bloggers/sites were allowed to the same constitutional protections as traditional journalists

Apple was further ordered to pay $700,000 in legal fees

Regulatory Violations

Mismanagement of Electronic Business Records There may be a legal obligation to archive all

postings related to the company Blogs can be used for against the company if a legal

matter arises

Loss of Control

Once you cede control of the message to outsiders, there is no guarantee that they will stay “on message” Comments should be moderated Some sites do not allow any comments

Spam + Blog = “Splog”

Online marketers are taking advantage of the “community” aspect of blogs to deliver spam via “comments” section and other posting opportunities