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The Blogging Phenomenon: How to Avoid Legal Implications

By Alfred C. Frawley, Partner, Preti Flaherty Beliveau & Pachios LLP

Blogging is a phenomenon that attracts new writers every day. In fact, each hour two thousand new blogs are created. There are seven to eight million blogs or online diaries currently and the number grows. Individuals and businesses alike are reaching the online community via blogs because it is an efficient and inexpensive way to make your opinions widely known. But businesses should consider how a blogging policy could help avoid the legal implications of online publishing.

Blogging is publishing, just as is traditional newsprint publishing or broadcast media publishing. Whether you are a for-profit publisher, an independent writer or an employee blogging on company time, you are subject to the same rules and legal standards as other publishers. No new legal rights or obligations are created by blogs. It is simply a different means of carrying out existing activities, but given its capacity for nearly real-time dialog, blogging may result in your employees publishing information before carefully considering the consequences.

In the blogosphere, nothing is private and everything published is subject to legal implications including: defamation and libel, copyright and trademark issues, rights of privacy, and business-related intellectual property issues.

Defamation and Libel:
Defamation is a key area of exposure for blogs. Generally, defamation involves the following elements: a false statement of fact published to at least one other person concerning a third person; the false statement of fact must actually injure the reputation or standing of a third person.

Truth, of course, is a defense. Generally, name-calling is not enough, but if that name-calling impacts an individual’s standing or reputation in the community, it may support a finding of libel. If the object of criticism is a public figure, he or she must also prove actual malice on the part of the blogger. The laws on libel vary somewhat from state to state. In practice, this means that a blogger should be cautious about critical comments concerning someone that can be, or is, identified in the blog. Some states also have so-called “retraction statutes” which ameliorate damages if a retraction is demanded and printed on the blog.

Copyright and Trademark Issues:
Copyright protection applies broadly to the contents of blogs and is triggered when the work is created and no additional steps need be taken. The creator of the blog may register his blog with the U.S. Copyright Office and that provides additional remedies in protecting against infringement. Whether registered or unregistered, a person creating a blog may grant or withhold permission for somebody else to use, copy, distribute or republish his or her work.

Blogging also raises additional opportunities for copyright infringement. Since creative expression is generated on blogs and numerous other websites and since it appears in digital form, mechanically it is easy to copy or cut and paste copyrighted materials of others, and in fact the nature of blogging with commentary and opinion sometimes encourages copying other persons’ work in the review, comment or criticize.

As a general rule, bloggers should seek permission before copying other people’s work in substantial part. The fair use doctrine of copyright applies to blogging and fair use as a defense to an otherwise proven case of copyright infringement may allow the use of copyright protected works for literary criticism, commentary, new reporting, scholarship or teaching. With that in mind, it is best to avoid taking significant portions of the work you are commenting upon. A fair use defense would look at the substantiality of the portion of the work used in relation to the copyrighted work as a whole, and the effect on the potential market of the copyright infringement. To protect oneself, bloggers should 1) publish only as much and no more as required to make a point, 2) credit the original author and 3) link to the original source for the complete work.

One of the attractions of blogging is its apparent anonymity and the right to speak anonymously. However, if you try to blog anonymously through a third-party service (such as www.blogger.com or www.blogspot.com) the service may be subject to subpoena seeking your identity from the blogging service provider. As with most things on the Internet, anonymity is more apparent than real.

Business-Related Issues:
A number of issues arise where companies or its employees engage in blogging. These include leakage of proprietary information, disparaging blog entries, implications for product liability, and for litigation issues.

Corporate blogging generates new risks. The informal and often “stream of consciousness” style (a large part of blogging’s appeal) tends to foster lack of caution and careful consideration. Informal discussions published on corporate or insider blogs could arguably run afoul of securities rules against elective disclosure or disclosure during applicable “quiet periods”. Corporate blogs also risk disclosure of company information used by employees with terms of employment or leakage of confidential, sensitive or proprietary information.

The best policy if employees are blogging or if a company has a corporate blog, is to have a blogging policy. It is likely that there is a blogger in every company and blog-related legal issues are inevitably complex. Companies should clarify their policies on blogging and consult with legal counsel to have the expectations of employees set out clearly.

A comprehensive blogging policy should govern use and content. Even then, however, general prohibition on the publication of defamatory material is unlikely to exclude liability entirely. Established case law suggests an employer can be liable for even unauthorized publication of allegations by an employee when that publication occurred in performance of an employee’s authorized acts. The fact that the employee chose an improper method of performing his job, does not shield the employer from liability and certainly this logic can be applied to blogs where the employer has encouraged legitimate discussion of reliable businesses. Like email, blogging tends to lessen an individual’s filters. Blogs may also intensify the risk of liability for defamation, copyright and trademark infringement, disclosure of trade secrets or private customer information or other business torts. Even comments posted to a blog by unrelated third parties may rise to claims of corporate liability.

As blogging increases in popularity, businesses will benefit from an up-to-date blogging policy with the understanding that the same laws cover blogs as traditional publishing. Treat blogs with the same care you would give to the contents newsletter or any other policy distributed on behalf of your company.

Alfred C. Frawley is the Chair of the Intellectual Property Practice Group at the firm Preti Flaherty Beliveau & Pachios LLP in Portland. He brings nearly thirty years of experience in a wide range of legal fields, with particular concentration in complex business litigation and intellectual property law. Alfred is also a Founder, Board Member and past President of the Foundation for Faces of Children, which supports research and education at Children's Hospital in Boston. For article feedback, contact Alfred at afrawley@preti.com


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