I have recently finished reading Blogging and Tweeting without Getting Sued: A global guide to the law for anyone writing online (affiliate link) by media law expert, Mark Pearson. I was attracted to this book in the first place, as I have witnessed firsthand quite a bit of unsavoury online behaviour of late both personally and in the media and was keen to get a bit more information as to where that imaginary line in the sand is and to be able to share that information with fellow online users. This post provides a summary of the main issues discussed in this book.
This book is a handy guide that explains in plain english how you can get your message across online without getting yourself in trouble with the law, a lesson that anyone that is conducting business in the online and/or social media environment should be aware of. If you are sharing content online then you are effectively a self-publisher and as such fall under those laws that were originally produced for traditional media publishers, with many of those laws not yet keeping pace with the fast changing world of online publishing.
A range of international examples of the legal risks you are taking as an online writer are provided throughout the book, whilst at the same time demonstrating how cyberlaws may vary in different jurisdictions throughout the world. Issues covered include defamation, contempt of court, privacy breaches, identity theft, confidentiality, court orders, hate speech, state secrets, breach of copyright, trademarks, false advertising and sedition.
The overwhelming message throughout the book was that you can never quite be sure where your words, symbols, still and moving images, sounds, illustrations, headlines, captions and links might finish up and which laws will therefore apply. However despite the different international laws, most countries have the same principles. That is, there is a level of expectation that when you post on-line you will “refrain from committing a crime, destroying someone’s reputation, interfering with justice, insulting minorities, endangering national security or stealing other people’s words or images”.
Defamation, the legal term for damage to reputation, is the most common area of litigation for publishers, whether that be online or using more traditional forms of print media. Blogs, tweets, Facebook comments, hyperlinks, emails and even retweets or “Likes” might make you liable for defamation. As soon as you say something nasty about someone online you have defamed the victim of your comments. The damage that can come from such comments can range from embarrassing to devastating (and expensive) depending on many factors, including the content, trauma caused and who and how many people see what you have published.
Defamation is referred to as “libel” in its permanently published form or “slander” when spoken and is usually actioned as a ‘tort’, where someone can file a law suit against another person over a “civil wrong” that has been done to them. Courts usually award a sum of damages as compensation or make other orders, such as stopping the publication or forcing an apology.
The best advice offered here is to think twice before you write about a person or business in a negative way online, even if you are only using 140 characters.
Republication, Retweets & Shares
Whilst the initial author is responsible for the original publication of any dubious material they post online, any third part that shares those messages may also face damages, particularly if they add more inflammatory material of their own. Therefore you must also be careful when retweeting or sharing the work of others, as in doing so you are then republishing that material under your name and may share the legal liability with the original publisher. Courts will also consider the extent of republication when assessing damages, so should you publish anything unlawful, this is one time when you may wish that your content doesn’t go viral.
Should you choose to remain anonymous online by posting as a pseudonym or alter ego, you are still subject to the same laws and you are probably more identifiable than you might think. There have been many cases where Internet Service Providers (ISP’s) and social media platforms such as Facebook and Twitter have been ordered to reveal the identities of anonymous users.
There are two types of pseudonyms, noms de plume (‘pen names’) and nom de guerre (‘name of war’). The first allows you to take on a different persona, as many great authors have done in the past, whereas the later is used as a cover for your attacks upon others and is a form of cowardice. Using the veil of anonymity to engage in character assassination or vent bile at the expense of others is reprehensible and something that courts in most countries will not tolerate. In addition to this, by setting up fake profiles you are automatically in breach of the terms of service with social media platforms such as Facebook and most countries have laws forbidding setting up fake social media accounts or websites for mischievous purposes.
The best advice offered here is don’t publish anything under a pseudonym that you would not be prepared to take responsibility for if you were exposed at a later stage. Another thing to consider is that using your own name can sometimes afford you some legal protection as part of a defamation defence, as under your real name you can argue that you were just expressing an opinion. However it might be harder to prove the opinion of your online persona was one your honestly held in real life.
Often people may be more liberal in the type of content they share when posting within the perceived privacy of an online group, such as a “Secret” Facebook group. This is all well and good, but what if that content is later shared? Re-posting that content in a public forum might be classified as a breach of confidence or the disclosure of embarrassing facts and could result in civil action. Sharing content sourced from a private or restricted access group requires use of your moral compass and ethical judgement. If your compass is in tact, then you would never disclose embarrassing private facts about another that have been sourced in confidence.
On the flip side, never share any content online that you would not be prepared to say to someones face or would be unhappy seeing plastered across the evening news with your name attached to it. In other words, if you want something to remain private, then best to keep it that way and never post it online regardless of how strict you perceive the privacy settings to be.
Cyberstalking & Bullying
A lot of blogging and social sharing involves requesting opinions and invoking discussions. Sometimes this can get pretty heated. Whilst most people know when to walk away from an online disagreement, there are some people that either just won’t drop it or seek out and thrive on such altercations. Sometimes this can turn nasty in the form of cyberstalking and/or bullying. Many people are unaware that stalking laws extend to digital intimidation in many countries. If it is your personality type to hold onto issues like a dog with a bone, then perhaps the online environment is not for you.
I love this quote from the movie The Social Network: “The internet is written in ink”. Gone are the days when we can destroy the evidence of our written work by shredding publications. The minute you push that Post, Publish or Send button when publishing online you make your work instant and irretrievable. Even if you delete your work shortly after publishing it, you can never be quite sure who has seen your content, taken a screen shot, downloaded it or shared it already. This allows little room for impulsiveness, carelessness or publishing under the influence, things that we should avoid as online publishers.
Should you publish dubious material, the best policy is to take all steps to withdraw it as soon as possible. If others choose to forward it or republish it, then it may well become their problem rather than yours.
Digital theft of creative work is rampant on the Internet and social media, with intellectual property laws varying markedly throughout the world. As a publisher, you have a moral obligation to your fellow creators to make full acknowledgement of the original author of the content you share.
Intellectual propriety laws are in place to protect our right to the exclusive use of any creative outputs we may produce. The most relevant law in this instance is copyright law. With copyright, the original creator holds the right to what they have created and has the legal power to license others to copy it as they see fit. Copyright covers creative work such as writing, music and images and may also extend to computer programs and databases in some countries. Copyright does not protect an idea alone, but rather a form of expression used to convey your idea.
In most countries, work does not have to display the copyright symbol to be protected. However, using this symbol on digital work such as websites and blogs is still encouraged as best practice, as it signals your claim of authorship to anyone who might think you have given up your rights just because you have posted it on the Internet.
The best advice given here is to seek legal advice on your exposure to a host of commercial law issues in your jurisdiction and get the permission of the creator to reuse their material. If you cannot source the original author, then you should consider creating your own material.
Bloggers should also look into the details of their contracts and/or local laws relating to any work the have been paid to produce for employers or clients to determine where the copyright entitlement lies and to what extent. You also have the moral right as an author to receive attribution for your work and to object to changes that may damage your integrity as the creator.
In short, if you are being paid to report on, promote, review or analyse something, then you should disclose it. These types of arrangements are considered as endorsements and therefore the material connections you share with the seller must be disclosed. As well as falling under trade practices and advertising laws, it is best practice, particularly if you are trying to develop a level of trust within your online community. This allows your readers to determine for themselves whether the advice you are giving is unbiased or not and prevents you from being accused of misleading or deceptive conduct.
Whilst I have provided a summary of the key points of this book that I feel are most relevant to small businesses that use blogging and/or social media as part of their business, I have only touched the surface of the wealth of valuable information that this book contains. I would highly recommend this book not only to businesses, but to anyone that has an online presence. My (non-legal) advice is to read Blogging and Tweeting without Getting Sued: A global guide to the law for anyone writing online (affiliate link) and then seek further legal advice (if necessary) on any aspects of cyberlaw that you are either unsure about or feel you may have got very close to or stepped over that imaginary line in the sand on.