5 Legal Problems Raised By Mobile Blogging

Filed as Guides on September 30, 2011 11:44 am

Cell Phone in CrowdBlogging, as well as almost all media, is become much more mobile. Not only are people reading and consuming news on the go, but they are also recording, writing and photographing it as well.

This move stems directly from the rise in both smartphones, which often include high-definition video/still cameras, as well as other portable recording and Internet-connected devices. From Flip cameras to laptops, you can run an entire multimedia empire without ever sitting in an office.

However, all of this mobility comes with it a series of new legal questions and issues that desktop-only bloggers don’t have to face. When you’re recording audio and video on the street, you have some additional concerns to worry about.

Fortunately, they are legal questions that you can easily address and deal with, so long as you’re aware of them and take steps to avoid them before you step out the door.

1. Privacy

When it comes to mobile blogging, privacy is probably the most obvious of the potential legal issues. After all, by the very nature of recording media on the go, you’re likely going to be recording other people, many of whom may not want to be recorded or have their activities plastered all over the Web.

Fortunately, this is not a new issue for traditional media, which literally has centuries of history photographing and videotaping people for news reports. The legal boundaries are fairly well set.

The safest thing to do is ask permission before you videotape, photograph or otherwise record someone for the purpose of posting online. If you can record this permission, or even better get it in writing, there should be no privacy issues at all.

However, that’s not always practical. In those situations, it’s important to only record people who are in public and have no reasonable expectation of privacy. A man unicycling down the street has no reasonable expectation of privacy, but one in a bathroom stall does. Record the latter and it becomes an issue of intrusion upon seclusion, an invasion of privacy tort.

Anything you record on a public place from people already a public place should be more than fine from a privacy standpoint. However, many establishments have their own policies regarding videotaping and photographing, which is actually a separate issue from privacy matters.

2. Copyright (Other People’s Rights)

Once you start shooting pictures or recording film “in the wild” you’re going to find yourself interacting with other copyrighted works almost constantly.

As an experiment, go to a major city street and look around. Many of the posters, statutes and even some of the buildings themselves are copyright-protected. If a radio is playing (either from a car or a building), it’s playing copyrighted music and there are likely televisions within eyesight that are playing copyrighted content.

Fortunately, you don’t have to worry too hard about all of these issues. Incidental inclusion of copyrighted works is generally considered to be a fair use. So that poster that happens to be in the background of a photo you’re shooting or that song snippet that you caught a few seconds of while shooting a video are almost certain fair uses.

However, this doesn’t mean you can deliberately record or reproduce copyrighted works on the street either. For example, if you record a busker playing a song on a street corner, even though you won’t be infringing his rights (privacy or copyright), you may be infringing the rights of the song writer if it’s a cover. Likewise if you take a photo of a statute or a piece of artwork without much else in it, you could be infringing the rights of that artist.

In short, you have to be careful what you record but you don’t obsess over removing every single copyrighted work from what you capture.

3. Copyright (Your Rights)

On the other side of the coin, you also have to worry more about your rights when it comes to copyright. There are two reasons for this:

  1. Mobile media tends to be passed through third-party services, such as TwitPic, which often come with usage terms that take away more rights from you than other services and have caused a lot of controversy in recent months.
  2. Mobile uploads are shared much more widely as they are used more regularly in social media, meaning that anything you upload or post is much more likely to be passed around than a regular blog post. While much of this sharing comes with attribution, it often times comes without any.

To deal with the first problem, simply choose services with reasonable terms of service. That’s no different than with non-mobile services. For the second, consider using recording software that automatically adds watermarks to your outgoing photos and videos the ensure attribution follows the work.

4. Trespass and “No Photography” Issues

One of the thornier issues those recording video and audio on the go have to deal with is the issue of trespassing and various “No Photography Allowed” issues.

The problem is simple, there are a slew of places where photography and video recording is expressly banned and the list is growing.

This area is thorny because a lot of the regulations are decided on a state or even local level, but generally any business owner has the right to post a sign barring photography, either by using a sign or telling you in person. If you violate that right, generally, it is considered trespassing.

There are also other places you may not be able to take photos, including, in at least some cases, train stations, airports, etc. depending on the rules. Much of this stems from anti-terrorism legislation passed since 9/11.

Your best bet is to ask permission before shooting photos or video on private property, even if it is a public place.

5. Libel and False Light Issues

Obviously defamation, in particular libel, remains just as big of an issue for mobile bloggers as it does for those working from their office. You can’t knowingly make false statements about others that harm their reputation without risking a lawsuit.

However, it’s important to remember that, while the camera doesn’t lie, it can mislead. For example, if you take a picture of someone who is walking past a protest group and make it appear they are a member of it or if you capture them in a pose that makes them appear to be doing something they are not, it could lead to problems.

These problems include both libel and false light claims. Though the two have a lot of overlap and neither are recognized in all jurisdictions, the typical distinction is that libel deals with a person’s public reputation and false light with emotional injury.

It’s important to be careful how you shoot other people, even with their permission in a public space, to be sure that you don’t accidentally libel them. Though, generally, you can’t accidentally libel someone (unless it can be considered negligence) you could still have a legal headache on your hands.

Since we’re in the era of digital photography, if possible, you may want to show your subject the photo or video before publishing it. However, the important thing is to make sure your photos and videos don’t accidentally imply something about your subject you didn’t intend. Otherwise, you could find yourself with a legal headache.

Bottom Line

In the end, what it all comes down to is this: Be careful when you’re out in the wild.

Whether you’re tweeting, shooting video or taking pictures in public, be wary of the legal risks you expose yourself to and make sure to take steps to avoid them. It may be something of a wet blanket on the excitement of mobile media, but it is much better than a lawsuit or even a threat of one.

Be smart about the content you create and you’ll be safer and more productive with your mobile blogging.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for The Blog Herald. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

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