Blogging Law I

On March 17, 2015, in Employment Law, Heather Bussing, HRExaminer, Privacy, Social Media Policy, by Heather Bussing

Don't post pictures of people in the bathtub on the internet. (Except if you are the mom, it's cute, and doesn't show naked body parts.)

Don’t post pictures of people in the bathtub on the internet. (Except if you are the mom, it’s cute, and doesn’t show naked body parts.)

If you are a blogger, or have a social media account, or do anything online, here are some of the most important legal issues that you should know about.

1.            Copyright           

You cannot copy an image or content created by someone else unless you have their permission or have purchased a license to use it. Just because it is on the internet for everyone to see, that does not mean you can use it. It belongs to the person who created it and/or the person who paid to have it created.

The most common exception is “fair use,” which allows you to use a short excerpt of someone’s content as a quote or in a review. If you do this, always say who wrote it and link back to the original.

For more info, see:

Social Media, Blogging & Copyright

You’re Violating Copyright on Pinterest

2.            Defamation

Defamation is the broad term for libel (written) and slander (spoken). They both involve saying something that is both untrue and harmful to someone’s reputation.

Defamation is essentially a privacy right because it relates to the right to be left alone.

Public Figure Exception

Things said about public figures, especially politicians, are generally not defamation. You can get away with saying bad things about public figures, even if they are not true, because free speech and political discourse generally outweigh the privacy rights of someone who has put themselves in the public view. Some states have tried to create laws that make people liable for saying untrue things about politicians, but they are being challenged on free speech grounds.

Of course, these rules were developed before the internet, where almost everyone is in the public view, so they need to be refined. Not everyone is a public figure, even after Facebook and LinkedIn. But there are also some valid arguments about waiving your privacy, especially when the damage is due to something you put online to begin with.

Opinion Exception

Opinions are also generally not defamation, even if it’s damaging and untrue. But that line can be a fine one and it’s easy to cross. So if I say: I think X is a weasel, it may be defamation even though I said “I think.” The reason is that people are not actually weasels, and weasels are known for being beady eyed and sneaky, so calling someone a weasel is potentially damaging.

With opinion, you have to give the listener or reader some factual basis for either believing your opinion or not. You have to give them some true information to go on. So if I say: I think opposing counsel is a weasel because he has bombarded me with discovery requests that have nothing to do with the case, is refusing to schedule a deposition of his client, and didn’t tell the whole story in court papers, then that’s probably opinion. A listener has specific information to make up her own mind.

Mostly though, you don’t want to say bad things about people in public anyway. It will almost always come back and bite you. This is because it is just as easy for them to turn around and say something damaging about you. Shaming on the internet is faster and more effective and damaging that a defamation lawsuit ever would be. Lawsuits are just really expensive.

3.            Misuse of Name and Likeness

This is another privacy right. Generally, someone cannot use your name or photograph to make money unless you give permission and/or they pay you.

This is why conferences sometimes ask for your permission to be photographed and to use the photos in promotional materials. This is nice and makes things clear, but generally when you are in public you give implied consent to having your picture taken. (See below.)

The real issue is when a company uses you or your photo to promote their product or service without your permission. That is misuse of your name or likeness.

4.            Photos that Violate Privacy or Other Rules

It is generally legal to take photographs of people in public and to post them online. Public usually means anywhere that is not private. Clever that.

Private means places a reasonable person would consider, well, private. This generally includes 1) inside your or someone else’s home, especially the bedroom; 2) anywhere you find people dressing, undressing, or naked, like bathrooms, locker rooms, and dressing rooms; 3) offices and businesses to the extent that anyone can’t just go in and look around.

Places that are generally public are pretty much anywhere outside a house or building, businesses and events generally open to everyone, even if you have to buy a ticket. The idea is that if anyone can come, it is “public.”

Even if a place is technically public, you can’t always take pictures there for other privacy, security, or other good reasons. For example, courtrooms are public spaces, but many courtrooms won’t allow photographs for security reasons and it interferes with the business of the courts. Art galleries only allow photos when it won’t damage the art.  So it is essential to be sensitive to where you are and what the rules are about taking photographs.

Summary

Don’t copy content, images, or graphics from the internet and use them unless you have permission, purchased a license, or know for sure it is in the public domain.

If you quote someone or copy a short excerpt, always mention the author and link back to the original post.

Don’t post unflattering or embarrassing pictures, or images where someone would feel that their privacy was violated. Just don’t. Even if you think it’s hilarious.

Don’t ever use someone’s name or image in your business unless the person involved gives you permission.

Next: We’ll talk about law and internet shaming.



 
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