5 Legal Nightmares to Scare you on Halloween

Filed as Guides on October 28, 2011 2:31 pm

Trick of TreatWith Halloween rapidly approaching, almost everyone is in the mood for a good ghost, zombie or vampire story. But while there’s always a good chill to be had from a scary tale or movie, some of the most frightening things aren’t works of fiction or stories at all, they’re simple facts.

Of those types of scary things, there is little more frightening than the law itself and how it can impact our daily lives.

As bloggers, we’re even more vulnerable than most when it comes to legal issues because, in addition to the usual spate of laws one has to follow day-to-day, we have the responsibilities of dealing with mass media law as well. Something, previously, few outside of the TV, radio, print and related industries had to deal with.

So, if you want some scary thoughts to give you something to ponder, here are five of the scariest legal realities and what they mean for you.

5. You Are, Most Likely, a Public Figure

By blogging and injecting yourself in a public discourse, you are a public figure and are treated the same, legally at least, as the biggest celebrity or a politician.

While that may not seem like a big deal, legally it makes it much more difficult to prove a libel case as you have to show that someone who said something untrue and harmful about you did so with actual malice, meaning they were wrong intentionally, and you have a limited claim to a right of privacy.

Courts have already ruled that those who interject themselves into Internet debates, including via blogging, are public figures and at least one person has had their case thrown out on these grounds.

In short, just by blogging, your privacy and defamation rights are greatly limited.

4. You Can’t Hide

Anonymity online is, more or less, nonexistant. Breaking through any veil of anonymity is, more or less, just a matter of the effort it takes to pierce it. While casual anonymity may fool your mother and your coworkers, it won’t fool your government who can get information from your host, your ISP and others involved in your online activities.

While you can take more drastic steps, such as proxies, to help avoid detection from law enforcement and those who might want to sue you, those aren’t perfect in many cases. To make matters worse, even if you do manage to find a perfect solution, you have to be perfect with every interaction you have online to avoid getting caught, something even the best fail to do.

Legally, it’s generally best to assume you can’t hide and that your identity can always be found out if there’s enough interest in discovering it.

3. You Can’t Truly Delete Anything Online

There’s an old saying that you can’t delete anything on the Web and, for the most part, it’s true. As long as there is interest in something, it is going toi be spread far and wide across the Web and impossible to kill. Laws about copyright, obscenity, defamation, etc. give you legal recourses but, as a practical matter, it can’t be destroyed completely.

But even if something doesn’t seem to generate a great deal of interest, it still exists after you delete it. Remember that bad Facebook photo that you took down a few days later? Facebook still has a copy of it.. As such, if anyone were to subpoena your account they would see what you posted.

To be clear, Facebook is not alone in this, most sites that host data from users hang on to deleted content for at least a certain period of time, usually many months. Some are better than others, but you can never assume the delete key actually deletes anything.

2. You Don’t “Own” Most of What You Post

Read the terms of service of just about any host, social networking site, forum, etc. and you’ll learn quickly that they are laying some pretty heavy claims to you content. TwitPic, for example, recently drew a lot of fire over its plan to sell some of its user-generated content and editing the TOS so it could do so.

However, even when a TOS isn’t being over the top with its claims, as a sheer matter of practicality you have to grant any host you put your content on a broad license to display and transform your work just so that their service can function.

In short, even the best host in this area walks away with a lot of rights to your work.

If you want exclusive rights or to give an exclusive license to someone else, you’re better off not posting your work on the Web or, at the very least, have an understanding how to terminate the terms other sites make you agree to.

1. Anyone Can Sue You for Anything, Anywhere

When we wrangle with legal questions such as “Is this libel?” or “Is this copyright infringement?” we are usually asking if a person could win a lawsuit based on this situation. What we never ask is if someone CAN sue. The reason is that you can sue anyone, anytime for just about anything.

Think about it. I could, theoretically at least, sue you tomorrow for destruction of my property, alleging that you keyed my car or broke my window. It doesn’t really matter that you were or were not anywhere near my house, city, state or even within my country.

I won’t win, but I can force you to go through the hassle and expense to respond and get the case dismissed. While such lawsuits are often considered abusive, the recourse is often limited.

While this is true for anyone, this is especially scary for bloggers as you are of potential interest to people all over the world. Want to get sued in Australia for libel? What about being sued in the U.S. if you’re a UK company? While both of these lawsuits were ridiculous and resolved in favor of the defendant, they still had to endure the hassle and expense of dealing with the case.

All it takes is one person with an axe to grind and you can be in a strange court being sued for almost anything.

Bottom Line

Should these legal realities scare you away from blogging? No. But they should definitely make you more cautious and more aware of the realities that you face as a blogger publishing your works on the Web.

The simple truth is that the Web is a scary place legally and it is best to be careful what you do. Though there is no way you can be completely legally safe online, if you are aware of the situation, act with caution and make smart decisions, you can minimize the risk greatly.

In short, don’t let fear scare you away, but let it guide you and keep you safer. That’s the best use for it.

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