5 Legal Issues to Watch in 2010

Filed as Editorial on December 14, 2009 4:19 pm

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The blogging legal climate is one of constant change. Though certain issues will always be of critical importance to bloggers, as they will to anyone who is a part of mass media, there is always a great deal that’s in flux.

This is especially true for bloggers as legislators and judges are just beginning to take on many of the complicated issues that blogging and democratized media brings with it. But where 2009 was a busy year for bloggers on the legal front, 2010 promises to be even more so.

In many ways, 2009 was a set up year for what is going to happen in 2010. In fact, the easiest way to decide what will likely be some of the hottest legal topics in the new year is to look back over the past one and see where the dominoes are likely to fall.

With that in mind, here are five legal areas bloggers should be paying attention to in the new year as they have the potential to be major forces in the blogging world.

1. Disclosure

In October of this year, the FTC published its new disclosure guidelines, which affect all bloggers, celebrity endorsements and other testimonials. It requires the affected persons to disclose “material connections” between bloggers and the products they review, including any payments or free products received.

The new rules have already been strongly decried for many reasons, including that it singles out bloggers versus other types of media and it seems much of the storm has passed.

However, it remains to be seen if and how the new guidelines will be enforced, especially against bloggers. Hints from the FTC are that it will be rather muted and, given the U.S.-only nature of the FTC, it seems likely they won’t have a dramatic impact in terms of fines or other sanctions.

That being said, if the rules are seen as a success, other nations could adopt them and they could become a de facto standard for bloggers elsewhere on the Web, creating a self-policing system.

Either way, 2010 is going to be the year where disclosure rules really come into focus.

2. Shield Laws

Shield laws protect journalists, in certain situations at least, from being forced to testify as to their sources for an article. The vast majority of bloggers will never be affected by such laws as they rarely write from confidential sources and even more rarely do so on topics that might reach a level where such a law can/should be invoked.

However, shield laws have been a critical test as to whether or not bloggers are considered journalists. Currently, in the U.S., there is no Federal shield law, though 36 states have them. Now Congress is hammering out a Federal one and the working definition seems to include bloggers as it focuses more on the craft and less on the profession.

Though these laws may not impact many directy, they they can have a drastic impact on how serious blogging is taken as a form of journalism and can be an indication of the progress blogging has made in that area.

Bloggers getting the same legal protection as reporters is a sign that blogging is being taken more seriously and will be a bigger and bigger part of the journalism landscape in the future.

3. Copyright

Copyright has been a major issue for bloggers, both in terms of having their works misused and, often without meaning, the infringing use of other’s content.

However, increasingly copyright law has begun to creep into what bloggers write about. For example, in 2009, Bluwiki and Apple found themselves entangled in a legal dispute over a discussion about how to synchronize iTunes libraries with other music players. According to Apple, the mere discussion violated the DMCA’s anti-circumvention regulations and demanded the removal of the involved pages, Bluwiki complied but sued seeking a judgment that the discussions weren’t infringing.

The matter ended when Apple withdrew its complaints, however, that left the issue very much open and is a potential bomb waiting to drop on bloggers, especially tech bloggers that talk about these issues.

Beyond that, other copyright “favorites” such as fair use, takedowns and RSS scraping will be in the news again in 2010, as they have for every year for quite some time.

4. Defamation

Though numbers aren’t yet available for 2009, it seems almost certain that defamation lawsuits against bloggers and other Web publishers are on the rise. There are many reasons for this, including that the veil of anonymity is more easily breached (both through courts and technology), celebrities are getting more involved in maintaining their Web presence and the general increase in the number of blogs and social media outlets.

To prove the point, Rob Livingston, best known in tech circles for his role in “Office Space”, is suing to silence a Wikipedia vandal that has repeatedly edited his entry to say the actor is in a homosexual relationship. As the blog poster points out, Wikipedia has the benefit of an editorial process and dedicated standards, something most blogs do not, especially when linking to potentially defamatory material.

The hardest part for celebrities and companies will be to decide if it is better to sue for defamation and risk the additional exposure, better known as the “Streisand Effect”, or let it go and hope it fades away.

Still, libel is going to become an increasingly thorny issue for bloggers in the coming year and it will be exasperated by a growing integration with social media. Fortunately, in the U.S., bloggers have Section 230 to provide them a great deal of protection for what others say on their site.

5. Trademark

Finally, trademark remained a big issue for bloggers and seems likely to increase even more in 2010. Though much of the trademark issues bloggers face deal with domain names, such as with the Glen Beck case, which had both trademark and defamation elements, but an increasing number of cases are involving parodies and criticisms of companies.

On that front, the Virgin America case, which saw the company sue over a parody advertisement, seems to be an excellent illustration of the problem.

Though trademark law is only designed to prevent “confusion in the marketplace”, giving wide berth for parodies and criticism, many companies and even some celebrities have begun to push the boundaries of that, suing in faces that seem to be fairly clear-cut.

As with defamation, this seems likely to be a thornier issue in the coming year, the two most likely going hand in hand.

Bottom Line

The only thing that has remained constant in the legal climate online has been change. That, in turn, has brought with it an ever-increasing number of pitfalls for bloggers to step in.

Though, as bloggers, most don’t have mass media training, it is important to at least understand some of the basics of mass media law to avoid finding yourself on the wrong side of a lawsuit.

On that front, the EFF provides a very good guide for bloggers to review. Being abreast of your legal rights and obligations is the first step to staying out of trouble on the Web and can go to great lengths to help you should a conflict arise.

Nonetheless, it seems like 2010 is going to be a very interesting year for law online, I just hope that its a safe one for all of you.

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  1. By Jon Paget posted on December 15, 2009 at 2:43 pm
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    Jonathan – an interesting post and one which, as a blogger, I find invaluable.
    I agree with your comment about it being unclear how this will be enforced (especially enforcing bloggers to reveal connections with companies/brands they write about), although it’s useful to know the situation and therefore the risks before starting out.

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