Law 101 for Bloggers

July 19, 2015

dreamstime_m_37276385 falling rocksToday’s writers wear many hats. We are Tweeters, Pinteresters, YouTube-ists and most of all, bloggers. Maybe we have heard about privacy policies and COPPA, but we don’t know whether they apply to us. After all, we are not challenging Wall Street, City Hall, or Big Data. We are blogging to inform readers about our work and sell a few books. We don’t expect our little blogs to turn into big lawsuits.

Unfortunately, by blogging, writers are exposing themselves to new legal risks, primarily infringement, defamation, and invasion of privacy. They must also comply with regulatory rules that carry costly penalties. With a little information and common sense, bloggers can reduce these risks to livable levels.

Today, let’s take a quick look at these issues.

Avoiding Infringement

Downloading a great quote or image from the internet is easy. In fact, it is so easy many people forget that those words and images belong to someone else and may be protected by copyright. Some people still think anything posted on the internet is free to use.

Not true.

Text and images are intellectual property. If you use someone’s property without permission, whether it’s a car, a bicycle, or a photograph, it’s called stealing.

dreamstime_m_27795764 kittenWhat about fair use? Doesn’t that cover blogging?

Maybe. If a blog is non-commercial or educational, then some uses might be permitted as fair use. For example, if a blogger uses an image of a kitten to comment on the composition of that image; that is probably fair use. But it is not fair use for the blogger to use that same photo as an eye-catching hook in a post reminiscing about a childhood pet.

Fair use is a legal defense, not a permission slip. It excuses infringement only in special cases. Social media attorney Ruth Carter explains more in her video.

Bloggers need not risk infringement. Hundreds of sites offer free public domain images or low-cost stock images. Nina Amir lists some great sources on her post Use Photos to Enhance the Visual Appeal and Shares of Your Posts.

I list more on my site: Little Known Sources of Public Domain Images and Stock Images; a Little Money Goes a Long Way.

If you want to use an image or quote that is not in the public domain or a stock image, take the time to contact the blogger or site that posted the material. Many are happy to permit you to reuse their material if you provide attribution and a link back to their site. If not, then you know not to use their work.

http://www.dreamstime.com/royalty-free-stock-image-playful-shy-woman-hiding-face-laughing-image21473826Using Images with Recognizable Faces

The rules on when and how bloggers may use photographs of recognizable people are complicated. Much depends on where the photograph was taken and how it is being used.

Generally, if a blogger takes a photo in a public setting and uses it to report on the event or to discuss an issue of public interest, the blogger does not need permission from people appearing in the image. For instance, you may post photos of writers you met at a conference without permission, although it never hurts to ask.

However, you should obtain permission to use any image taken in a private setting, such as a dinner party in someone’s home. The extreme case is a jilted lover posting images of his (yes, it’s almost always his) former partner without permission, commonly called Revenge Porn. Some states and countries have made this a crime.

Even if the people in your photos are fully clothed, it’s better to ask permission to use images from private settings.

Regardless of where an image was taken, never use anyone’s likeness, name, or identifying information for advertising or promotional purposes without a written release. This includes those who have passed away since in some states the right to publicity survives a person’s death by up to 100 years, whether or not the person was famous.

Finally, don’t use an image to make it appear someone is endorsing you and your work unless it’s true. Recently, an attorney had her license suspended for pasting herself into dozens of celebrity photos as part of promoting her entertainment law practice. What was she thinking?

Adopting a Privacy Policy

If you collect personal and identifiable information, such as requiring readers to register in order to comment, receive newsletters, enter a giveaway, or purchase merchandise, then write up and post a privacy policy on your blog. In California, it is now the law.

privacy1What is personal and identifiable information? Names, addresses, email addresses, phone numbers, user names, passwords, marital status, credit and financial information, medical history, travel itineraries, photographs, Social Security Numbers, or any information in “personally identifiable form.”

What about web stats and analytics? Information about viewers in general, such as browser type, pages viewed, referring sites, history, and location— the sort of information collected by Goggle Analytics—is not considered personal and identifying. I suppose a very sophisticated geek could identify individuals from such data. For this reason, many suggest every website and blog have a privacy policy that at least covers web stats.

What goes into a privacy policy?

  • Describe the kind of information collected, such as names, addresses, and credit-card numbers. Provide users a way to correct errors.
  • Explain how the information will be used and shared. Do you share it with potential publishers, agents, publicists, or marketing companies? How do you maintain security?
  • Include an opt-out option.
  • If you will be collecting personal information about children under the age of 13, then you must comply with the Children’s Online Privacy Protection Act (COPPA).

Sample privacy policies are easy to find on the internet. You may use the one on my website as an example. Keep in mind, I collect little personal information; only enough to send newsletters. If you collect substantial personal information or collect credit card numbers, you need more elaborate policies. Do your homework to learn more.

Complying With COPPA

If you operate a commercial website, online service, or app directed toward children under 13 and collect personal information from those children, then you must comply with a long list of requirements under the Children’s Online Privacy Protection Act (COPPA). COPPA also applies if a blogger operates a general-audience website and has actual knowledge that the site is collecting, using, or disclosing personal information from children under 13.

For example, if you operate a website where children may share questions and discussions about your book; or upload photos and drawings using their real or user names, home towns, etc., then you must comply with COPPA.

COPPA rules are technical, constantly changing, and beyond the scope of this post. Educate yourself starting with the FTC website.

Even better, hire an expert to help set up your site, write your COPPA policy, and install parental verification systems. Search online for COPPA compliance experts, and you’ll find dozens of companies.

Stirring Up Controversy

The information above applies to non-controversial blogs only, meaning you are not exposing government corruption, challenging corporate powers, and the like. For those with controversial blogs, I applaud you. The world needs more like you. But your legal needs are more complicated and specific. You will need an experienced attorney on your team.

Bloggers, what other legal questions do you have?

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