Tuesday, March 26, 2013

Letter of the Law: Keep Your Blog Legal


Editor's Note: The following post is by Keith Lee, an attorney with the Hamer Law Group and the man behind the popular law blog Associate's Mind. Ketih will be a special guest at See Jane's Write Bloggers Who Brunch event set for April 7. RSVP via Facebook or in the comments section of this post. 


Guest post by Keith Lee 

Blogging is one of the greatest revolutions in publication since the printing press. It has given the ability to publish and be heard to essentially everyone with access to a computer. Almost all of the filters or barriers between a person wishing to share their thoughts, and display them in public, have been removed. Computers and the internet have given everyone the opportunity to have their voice heard.

But with this opportunity comes responsibilities and liabilities. You decide to blog about a bad experience you had at a restaurant which then reads your review and decides to sue you for defamation. Or someone makes a comment on one of your blog posts that attacks a politician. That same politician decides to come after you instead of the commentator. You decide to tweet about something that a local business gave you as a free trial - and the FTC decides to open an investigation file.

All of the above are worst case scenarios that are unlikely to happen. But at the same time, it makes sense to take some basic, and generally easy, precautions to familiarize yourself with laws and make sure you are complying with them.

Free Speech
First and foremost, you have the right to free speech. The government has no right to censor or impede you sharing your opinions. It is unlikely you will ever face any restrictions on your speech from the government.  But sometimes individuals or businesses will attempt to suppress an individuals right to free speech through what is known as a SLAPP - Strategic Lawsuit Against Public Participation.

To go back to our bad restaurant review as a example, the restaurant learns of the bad review by a blogger. The restaurant files a lawsuit against the blogger as a way to threaten and bully them to take the review down. The restaurant is betting on the fact that they have deeper pockets, and better lawyers, than a small-time blogger. So while the restaurant's lawsuit would likely fail if it ran its course, it doesn’t matter. The restaurant doesn’t need to win in court, they only need to intimidate the blogger enough to take down their review. Hence, a Strategic Lawsuit Against Public Participation.

Other People’s Speech
Another difficult issue that can arise in blogging is the comments on a post. Comments are fantastic to receive because it indicates that your readers are engaged with your writing. But it can also be a headache it they are negative or attacking people in public. But as a blogger you are generally protected. Specifically, you are protected by a section of the Communications Decency Act passed in 1996. While much of the Act has been struck down as restrictions on free speech, one important part has survived:
Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (47 U.S.C. § 230).
Essentially, you are not responsible for the speech of others on your website. Under the law, bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds. Section 230 provides the protection that has allowed innovation and freedom to thrive on the internet. The Electronic Frontier Foundation has an excellent infographic on why Section 230 is so important.
            
Paid or Compensated Speech
Many people who start blogs do so in the hopes of them becoming a business. Maybe not a full-time one, but a passive, secondary business nonetheless. The way many bloggers make money is through the endorsement of products and services through affiliate links. Affiliate links are unique links that serve two purposes: A) it directs a visitor to a sales page AND B) credits the host-blog with a commission should the visitor make a purchase by tracking the link back to them. The most common example of this is Amazon’s Associates program.

This type of activity went unfettered for many years before the government stepped in. In 2009 the Federal Trade Commission revised its rules and regulations regarding endorsements and testimonials in reaction to blogs and online advertising (warning: only read that you link if you are a glutton for punishment or a lawyer!). What these new rules mean is that there is now a requirement for voluntary disclosure of endorsements and affiliate links.

The easiest way to do this is a simple statement: “This is an affiliate link,” or “I received this product from X company - but I am endorsing it because I use it and believe in it.” What matters here is honest communication with the reader, not compliance with some obscure legalese.

Want To Learn More?
As I stated earlier, blogging is a fantastic revolution, and one that people should embrace. But you should also be aware that, like everything else, it is governed by rules and regulations. These rules should not intimidate you. You just need to take a small amount of time to learn about them and make sure you are complying with the law and keeping yourself protected. Which, admittedly, can be tough - just last week the FTC released a new set of rules that particularly affects Twitter. So it’s worth your time to keep tabs on the laws affecting blogging from time-to-time.
            
If you would like to learn more about these, and other issues you might face as a blogger, I’ll be speaking at See Jane Write's Bloggers Who Brunch at noon on April 7 at Black Market Bar. I look forward to meeting and speaking with you. 

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