November 11, 2008

How to Keep Your Blog Out of a Courtroom - Advice from Legal Pro on Providing, Creating Content

SUMMARY: A company blog can be great for marketing. But inappropriate content and troublesome comments can also expose you to lawsuits.

Here’s advice from a 30-year business attorney with extensive knowledge of the laws on blogging and user-generated content. Includes tips to avoid turning a blog post into “exhibit A.”
Writing a company blog and allowing your customers to contribute to it can build your reputation, drive more traffic your way, and really put you in touch with your audience. It can also increase your exposure to lawsuits.

Nina Yablok, Business and Corporate Attorney at Law, has been a business lawyer for 30 years. She’s had clients with message boards and chat rooms since 1993. Her first online client ran one of the largest forums on Compuserve in the ‘90s, which predates social networks like MySpace and Facebook.

“It was very, very similar to a modern social network,” Yablok says. “Except my client’s forum might have 1,000 messages a day which, compared to Facebook, is practically nothing.”

Since that time, Yablok has worked with clients who blog, post video online, respond to comments, podcast – the whole Web 2.0 gamut. The technology has changed dramatically, but liability concepts have not, she says.

“It’s how they’re applied to different technologies. Basically, the rules then are the rules now.”

The only thing better than winning a lawsuit is not having one at all, she says. Here are the strategies Yablok suggests to keep your blog and UGC out of the courtroom.

Strategies to Prevent Lawsuits

When you write a blog that welcomes user comments, you’re a content “creator” and a content “provider” in the eyes of the law, Yablok says. But there is a difference. Creators are always responsible for what they create; providers are not.

YouTube, for instance, is not legally responsible for every video on its site. Someone who creates an illegal video and uploads it can get into legal trouble. But YouTube may be able to avoid liability if it agrees with a court order to take down the video.

Providing Content

Regulate Comments and User Content Loosely

Popular blogs attract a myriad of negative comments. Profanity, defamation, hate speech, lies – they’re all there. Some comments might be appalling, or downright illegal, but don’t be too quick to edit them.

The more you monitor and regulate user content on your site, the more you’re liable for what is said, Yablok says. As soon as you begin deciding which comments stay and which comments go, you become more responsible for every comment on the site.

“What appears to be the best practice now is to not go over your comments with a fine-toothed comb. Don’t try to explain them. Don’t try to put them in better language. Don’t delete bad parts and leave good parts. If it offends whatever standard you set, delete it. If it doesn’t, leave it. And make the standard very clear in the beginning,” Yablok says.

Worry about offending readers, not the law

Get rid of bad language and incendiary-type comments, says Yablok. But don’t worry about defamation, copyright violations, trademarks, and such. That’s where you’re fine-tuning everything.

“You’re just a provider. You’re going to be excluded from liability under an assortment of laws that protect the people who provide rather than create content,” Yablok says.

Creating Content

As a blogger, you spend a lot of your time creating content – an activity for which you are completely responsible. Below are six liabilities to watch out for and tips to keep you out of a courtroom.

Linking and quoting

* Linking
The blogosphere loves links. Linking to valuable content is both legal and welcomed since it sends traffic to the owner.

* Quoting
- The right way: Quoting a few lines from a person or a publication is acceptable if you attribute the citation and discuss the content.
- The wrong way: Quoting a substantial passage of text (e.g., a few pages) is not acceptable. Moreover, failing to attribute someone’s content looks as if you are attempting to pass it off as your own.

Famous people

There are entire blogs devoted to making fun of celebrities. Talk about the stars all you want, but don’t use their fame to sell your products without permission.

“You can’t use their image or their words or anything that implies that people who see [this content] are going to think this famous person somehow endorses you or your product,” Yablok says.

Using a brand’s trademark

1. Associating the trademark with the blog

If you do not own the trademark, or are not contractually allowed to use it, do not put it on your blog as if you were endorsed by its owners. You cannot even use parts of your name that are similar to trademarks. If you’re name is Joe McDonald, you cannot start a McDonald’s Blog because the McDonald’s ™ corporation can hit you with a trademark violation.

“Build your brand on something totally new. Don’t try to imply or create an impression in somebody’s mind that these [your brand and the trademarked one] are somehow connected,” Yablok says.

2. Discussing the trademark in the content

You can, however, discuss companies by their names in your blog. “If you want to be really careful, I would put a note at the end of the blog post saying that ‘the trademarks mentioned above belong to the respective companies,’” Yablok says.

Using Images

Images look great in blog posts. You can freely use images that you:
o Created
o Own
o Have a license for
o Know to be part of free stock photography or free clip art

To decide whether or not you can use an image, you first need to determine who owns it. Just because an image appears on a website does not mean that it is owned by that website. For instance, you can see millions of different images on Google’s Image Search that the search giant does not own.

“The fact that something is on Google does not make it free clip art,” Yablok says. “Don’t grab images from sites that link to where it was originally posted. Go to where it was originally posted so you can see if anyone is claiming ownership of it.” If you find an image and it’s owned by someone else, always get permission before publishing it.

Following Digital Millennium Copyright Act

The DMCA, signed into law on October 28, 1998, amended the United States Copyright Act … “to provide, in part, certain limitations on the liability of online service providers for copyright infringement,” according to the U.S. Copyright Office’s website.

* Know the complaint procedure

Under the DMCA, if someone claims you are using their copyrighted content, such as an image, you have to be notified. If you were unaware that the image belonged to someone else, you’re allowed to take it down without the risk of being sued.

“Instead of getting hit with lawsuits where you don’t know what the next step is, there is a procedure and a way you can pull that image down and not get in trouble,” Yablok says.

However, if it was obvious that the content was copyrighted, you will not have much of a defense. “If you knew it belonged to somebody, and you stole it from their commercial website, you’re toast.”

* Designate an agent

To be eligible for the DCMA procedure, you must register an agent who will receive claims against you (see registration form linked below). There is an $80 filing fee. Yablok suggests that all bloggers designate an agent. Some of Yablok’s clients have her listed as their agent.

Don’t take part in defamation

If you defame people or businesses on your company blog, you’re liable if what you say is untrue and damaging. Damage usually has to relate to financial impact, Yablok says.

You do not want to spread rumors that you’re confident are untrue, even if you’re citing a source. If the post defames a private individual, that person has to prove it is false and that you were negligent in seeking the truth. If the post defames a famous person (as determined by a judge), they have to prove that it is false and that you acted with malice or a desire to hurt them.

* Cite your sources

If you publish negative information about someone on your blog, cite the source of the finding. For example, if you read on the county criminal docket that the mayor stole someone’s lawn furniture, say that you saw it on the docket. “You’re not saying he’s a thief. You’re saying that, on the docket, this is what appeared,” Yablok says.

* Protect yourself with screenshots

If you decide to post damaging content that you found on another website, take a screenshot of the page, date it and save it. That way, you’ll have proof that you didn’t start the rumor even if the original site takes it down.

*Deflect your urge to defame with insults

General insults don’t count in the eyes of the law.

“Insults, generally, are not actionable as defamation,” Yablok says. However, if you call someone a crook in reference to a specific crime, you are accusing them of that crime, which can be a liability.

Note: This article is not published as legal advice. Always consult an attorney before making legal decisions.

Useful links related to this article:

US Marketing Law: How to Conduct Surveys Legally Online & Off - 6 Challenges

U.S. Copyright Office: Online Service Providers

DCMA Agent Form

About CompuServe

Law Office of Nina Yablok

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