Rapidly the “Wild West” days of blogging are coming to an end legally. As blogging becomes more mainstream as a form of media, so does the legal issues that confronts it. No longer an outlier, blogs are actively competing with newspapers and even television in terms of journalism, audience and trendsetting.
But this has brought with it a slew of new legal headaches. Blogging has become the target for copyright holders, celebrities and even the FTC. There are very real and very serious legal risks associated with blogging and it is important to be aware of them.
So what are some steps you can take to avoid legal headaches with your blog? There are actually too many to list and much of it just comes down to operating in good faith. However, there are a handful of very simple things that you can do to improve your legal position and lessen the likelihood that you’ll be on the wrong end of a lawsuit and also strengthen your own rights.
Just some of the basics are below.
1. Add a Disclosure Policy
The new rules from the FTC about blogging disclosure may be mired in controversy, but they are the law, due to take effect December 1. Bloggers who fail to disclose relationships with companies they review, such as companies that pay them or give them free gifts, face fines of up to $11,000.
This has put disclosure directly in the spotlight and it is time to add a disclosure policy to your site (a project on my plate for later this week).
A disclosure policy is not only good practice, but it may also help avoid legal issues from the new FTC rulings. Since they are so new, it is unclear exactly how they will be enforced and it is vital to do everything one can to avoid running afoul of the law.
This is a good practice ethically as it lets people know up front what data you are collecting and how it will be used, but it can also help avoid legal issues from those who might claim they didn’t know what you were doing and took offense to it.
In short, if your site leaves cookies in your user’s browser, which it probably does if you use any statistics programs beyond your server’s, you will want to consider it.
3. Add Trademark Clarifications
If your blog uses trademarked names in a way that might be confusing, it is important to add a trademark clarification, such as the one on Google Blogoscoped.
Though such a disclosure will not protect you if you intentionally use the mark in a confusing way, such as the give the impression of a relationship that does not exist, if you operate your blog in good faith, this disclosure can help you avoid being sued for trademark infringement as you are using the mark as part of your commentary, criticism or reporting, something that is generally allowed.
Still, you should always be careful about using a trademark in your domain name. Also, even though you have some level of trademark protection in your site’s name just by using it in a business, you may want to seek out a formal registration to increase your rights.
4. Add a Copyright Policy
First, you need to have a copyright policy for your blog that explains to others how you are willing to allow your content to be used. Though you have all rights in your work automatically upon creation, most bloggers are willing to share their content, at least under some circumstances. On that front, Creative Commons can help create a simple, effective and legally-sound policy.
However, unlike with a trademark policy, when using other people’s content, having a disclosure that use isn’t intended to be copyright infringement doens’t help. Trademark is designed to prevent confusion in the marketplace over a mark and working to avoid that confusion can provide some protection. However, copyright is designed to prevent certain uses of a work, regardless of how it is disclosed.
When using other’s work, ensure that you have permission and, if you don’t, that your use is a likely fair use.
5. Add Adult Content Disclosures
If your site contains or regularly links to adult content, you may want to read the EFF’s guide for adult content on blogs. There are various record keeping and disclosure requirements that you have abide by when publishing adult material on your site. Also, though not a legal issue, you will want to make sure that your host allows adult content as many do not.
This is critical to do if you deal with adult content as complying with the law is an important step for avoiding legal problems, including many criminal ones.
It’s a very simple step to take and can provide some much needed peace of mind when entering the potential minefield that is adult material on the Web.
Blogging is rapidly becoming a legal minefield and, considering that most bloggers are far from mass media law experts, the danger is clear.
However, there are steps that bloggers can take today to help protect themselves and avoid potential issues. Most of them are just a matter of adding a few lines to your site or remembering to include a proper disclosure.
But more than being good for your bottom line by keeping you out of court, following a sound legal strategy is also good for your readers and your site. It shows a level of professionalism many sites lack and gives your readers the information they want and need to make judgments about your site.
In short, being smart about the law helps you out in more ways than one.