The term blog is derived from the word weblog, meaning an online or web-based journalistic log. A blog is typically focused on a particular topic and posts are usually around 200 words.
If you already blog or are considering blogging, then you may want to know:
Question: What legal issues are associated with a blog?
Answer: The same legal issues that apply to any published form of communication.
On the flip-side, a blog also receives the same freedom of speech and press protections as other publications. Here are a baker's half-dozen, key legal issues to bear in mind with regard to content posted on a blog.
I. Defamation – Stuff You Say About Others
Defamation is explicit or implicit injury to a person’s reputation caused by the publication of spoken or written words, or dishin’ dirt about others. There are two types of defamation: Libel (written or Literal) and Slander (oral or Spoken).
The law of defamation applies to both natural, living persons (human beings), and artificial persons, or existing entities (going-concern companies). Although it may be frowned upon in polite society, it is legally permissible to speak ill of the dead.
The level of protection a person is afforded with regard to defamation depends on who he is. The ascending order of protection among persons is:
Least Protection: Public OfficialsThese include elected officials, such as the President, sheriffs, senators, etc.
Some Protection: Public Figures
These include notable people in the public eye, such as celebrities, both voluntary (Britney Spears) and involuntary (Kato Kaelin).
Greatest Protection: Private Figures
These include average citizens, such as you (assuming you’re not a public official or public figure) and me. Everyone truly is the master of his or her domain.
The elements to be proven by a plaintiff in a defamation claim are:
- Publication to one other than the person defamed; and
- False statement of fact that is understood as:
a)
Being of and concerning the plaintiff; and
b)
Tending to harm the reputation of plaintiff.
If the plaintiff is a public figure, he or she must also prove actual malice. Companies may or may not be public figures and are judged by the same standards as individuals.
Expressing one’s opinion about a person, which may be unfavorable, is usually not defamatory. However, merely labeling a defamatory statement as an opinion does not remove it from the realm of defamation.
Although truth is an absolute defense to a defamation claim, proving it may be costly in money, time and emotion. My advice and if in doubt, remember what your mother taught you: If you can’t say something nice about a person, then don’t say anything.
II. Trade Libel – Stuff You Say About Products and Services
Trade libel, also known as product disparagement, is akin to defamation. Trade libel is a false statement that injures the business reputation of a company or the sale of a company’s products or services. A well-known example of trade libel is the woman who falsely claimed to have found a severed finger in her bowl of Wendy’s chili.
III. Right of Publicity – Stuff Identifying Others and Used by You
The right of publicity is the right to prohibit others from using your persona for commercial purposes. Your persona includes your likeness (what you look like and other identifying idiosyncrasies, such as hand gestures) and voice (what you sound like). An example of a commercial purpose is an implied endorsement; for instance, using your picture without your permission on product packaging, thereby implying that you are promoting the product.
Natural persons, both living and dead (through their estates and for a limited period of time), have a right of publicity. The right of publicity is not all-encompassing and does permit the use of another’s persona for purposes of reporting, scholarship and commentary.
The right of publicity is governed by state law and, therefore, varies from state to state. As a result of its celebrity population, California’s right of publicity laws are extensive and favor the individual, including long-dead stars.
IV. Right of Privacy – Stuff About Others Pried into by You
The right of privacy, also known as invasion of privacy, is the right to be let alone. Only living, natural persons have a right of privacy.
An invasion of privacy occurs when there is:
1) Public disclosure of private facts;
2)
Portrayal of a person in a false light;
3)
Physical intrusion into a person’s private space; or
4)
Misappropriation of a person’s name or likeness (See above re: Right of Publicity).
V. Trademarks – Stuff That Identifies Goods and Services and Used by You
As discussed in a previous newsletter, a trademark indicates the source or origin of a good or service. A trademark owner has the exclusive right to use his mark with his particular goods or services.
The purpose of trademark law is to protect against consumer confusion in the marketplace and prevents the use of someone else's trademark to sell competing goods or services. Accordingly, a non-commercial, non-misleading use of a trademark in content, such as for reporting, scholarship, commentary, or factually based product comparisons, is likely to be considered a legal, fair use of the mark.
Be careful not to use a trademark in a manner which may suggest an endorsement by the trademark owner of you or your blog.
VI. Copyrights – Stuff Created by Others and Used by You
Also as discussed in previous newsletters copyright protection applies to original works of authorship. Technically speaking, any use of another person’s text or images in your blog without permission is copyright infringement.
However, some uses are considered fair use and permissible, such as for purposes of criticism, comment, news reporting, teaching, scholarship, or research. The law of fair use is a beast unto itself and I won’t expound on it here.
Generally, a short quotation of another’s work is fair use. Determining whether use of an image is fair use is trickier and it’s best not to use another’s image. If in doubt, seek permission to republish the material.
VII. Trade Secrets – Stuff That’s Proprietary to Another and Used by You
A trade secret is business information that has commercial value which provides an actual or potential economic advantage over others, and is maintained in confidence. Trade secret rights are lost upon public disclosure of the information. When blogging about your company, your employer’s company, or another’s company, take care that you are not disclosing proprietary or confidential information.
For more reading and good information, see the Electronic Frontier Foundation’s posts about blogging at: http://www.eff.org/issues/bloggers/legal.
© 2009 Brenda L. Speer, LLC
