Protecting Your Blog

Web logs (blogs) are prepared and used for personal, political and economic reasons. And liability issues associated with blogs are the same liability issues that are ' and long have been ' associated with traditional publications that are purposely made available to the public, again, for personal, political and economic reasons.

Blogs, therefore, receive the same freedom-of-speech and freedom-of-the-press protections as do traditional publications.

Blogs, like traditional publications, may result in allegations of plagiarism, unauthorized use and defamation claims. And, again as in the case of traditional publications, legal, technical and insurance options are available to reduce or eliminate blog-related difficulties for blog owners.

Steps to Reduce Harm

Laws concerning blogs vary from state-to-state. However, a blogger in any state may ameliorate legal difficulties by taking certain actions. To reduce exposure to foreign laws and the inconvenience of foreign jurisdictions, for example, a blogger can employ contract law. In particular, to achieve the aforementioned result, a blogger can require a blog user to agree to a terms-of-use agreement prior to using a blog ' an agreement that can limit out-of-state legal difficulties for the blogger.

For example, the blog's terms-of-use agreement may require that blog user to employ a particular state's set of laws and a particular set of courts. If the blog user agrees, then one state's courts will most likely be employed to resolve all blog-related disputes the blog user initiates.

Additionally, by implementing a terms-of-use agreement that specifically identifies a state of jurisdiction, and set of laws governing blog users' disputes, the blogger will benefit from an ability to rely on the fact that all federal laws, such as the Copyright Act or '230 of the Digital Millennium Copyright Act (DMCA), will allow resolution of a dispute in a state court and allow the blogger to use a state's shield law, if a state, such as New Jersey or Pennsylvania, has a strong one.

Publish a Notice

A notice published in a blog's Terms of Use or elsewhere on the blog can also reduce or eliminate other legal difficulties. For example, if the terms-of-use agreement contains a notice that specifically excludes all users under the age of 13, then the blogger may be able to reduce legal difficulties related to the Child Online Privacy Protection Act (COPPA). Counsel should remember, too, that a blogger may have to take certain actions in addition to posting notices to avoid certain legal difficulties.

Provide Access

A terms-of-use agreement may also be used to supplement enforcement of certain legal rights, such as copyrights. For example, a blogger may want to begin or end each entry with: “This blog is for personal noncommercial use only. If this material is used in another way, please contact [insert e-mail address],” as a means to allow the blogger to take action against infringers.

In addition to a blog using a terms-of-use agreement, the blogger can take advantage of public laws. For example, the blogger can register the blog as an Internet service provider for purposes of the DMCA to reduce or eliminate copyright infringement-related legal difficulties.

Post a Notice

Using an Internet application found at www.uscopyright.gov, a blogger may complete an online form, print it and file it with a payment of $105 to register as an Internet service provider under provisions of the DMCA. After registering, posting a DMCA notice and taking down allegedly infringing content, the blogger is most likely immune from copyright-infringement judgments.

A typical notice begins with an overview such as: “If you believe that the content of this blog infringes your copyrights, provide us with a written notice describing the content, a certification of your ownership and a removal request. Your notice will initiate a content-removal action by the blog.”

The overview is usually followed by a liability notice; for example: “Please be advised that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights.”

Finally, a set of guidelines is normally offered to assist the alleged copyright owner proceed. These include information on where to send the complaint and to remind the alleged copyright owner to provide certain information, including:

• A physical or electronic signature of the copyright owner or a person authorized to act on the owner's behalf;
• An identification of the copyright claimed to have been infringed;
• A description of the nature and location of the alleged infringing material;
• The full name, address, telephone number and e-mail address of the alleged copyright owner; and
• A statement by the alleged copyright owner.

What an Owner Statement Should Include

The content-owner statement should have three parts.

First, that the alleged copyright owner believes, in good faith, that the use of the content claimed to infringe copyright is not authorized by law, or by the copyright owner or the owner's agent.

Second, that all of the information contained in the alleged copyright-owner's infringement notice is accurate.

Third, under penalty of perjury, that the alleged copyright owner
is either the copyright owner or a person authorized to act on the owner's behalf.

Some Other Problems

Take this example. In New Jersey, bloggers face four other significant legal liabilities. These include:

• Defamation;
• Intellectual-property infringement (usually copyright or trademark);
• Violation of a third party's rights to publicity; and
• Intrusion into a third party's seclusion.

The defamation claims can usually be minimized by relying on and documenting sources.

The proper use of trademarks will minimize trademark-infringement claims. Proper application of New Jersey's shield law will minimize or eliminate claims related to violation of a third party's rights to publicity and intrusion into a third party's seclusion.

A blogger may also employ some technical solutions to avoid difficulties. For example, by leaving a link in a post to the home page and possibly in any charts or photographs, an unauthorized copy of the blogger's content will allow a subsequent use to be returned to the blogger's domain. Such links also make infringement claims easier to resolve.

Similarly, watermarking content will discourage unauthorized use because of the difficulty of removing watermarks. Watermarks also make infringement claims easier to resolve. Watermarks can be as simple as a copyright symbol used with the blogger's site or maybe associated with a hyperlink to the blogger's home page.

Get Insurance

Bloggers should also consider purchasing errors/omissions insurance. Errors/omissions insurance is a special type of business liability insurance. Most businesses have coverage for certain types of employees, such as insurance agents, real estate agents and brokers, architects and third-party administrators.

Errors/omissions insurance is intended to cover an error or omission ' a mistake ' that causes financial harm to another party; these can occur in almost any transaction in any profession. This type of insurance helps to protect a professional, an individual or a company, from bearing the full cost of defense for lawsuits relating to an error or omission in providing covered services, such as blogging. More often than not, this is a separate coverage from a standard general liability or property insurance policy.

It's possible that existing errors/omissions insurance already covers blogs. Note that some bloggers have been turned down by underwriters because the blogger's content was error-prone and not subject to verification.

Checking usually helps.

Web logs (blogs) are prepared and used for personal, political and economic reasons. And liability issues associated with blogs are the same liability issues that are ' and long have been ' associated with traditional publications that are purposely made available to the public, again, for personal, political and economic reasons.

Blogs, therefore, receive the same freedom-of-speech and freedom-of-the-press protections as do traditional publications.

Blogs, like traditional publications, may result in allegations of plagiarism, unauthorized use and defamation claims. And, again as in the case of traditional publications, legal, technical and insurance options are available to reduce or eliminate blog-related difficulties for blog owners.

Steps to Reduce Harm

Laws concerning blogs vary from state-to-state. However, a blogger in any state may ameliorate legal difficulties by taking certain actions. To reduce exposure to foreign laws and the inconvenience of foreign jurisdictions, for example, a blogger can employ contract law. In particular, to achieve the aforementioned result, a blogger can require a blog user to agree to a terms-of-use agreement prior to using a blog ' an agreement that can limit out-of-state legal difficulties for the blogger.

For example, the blog's terms-of-use agreement may require that blog user to employ a particular state's set of laws and a particular set of courts. If the blog user agrees, then one state's courts will most likely be employed to resolve all blog-related disputes the blog user initiates.

Additionally, by implementing a terms-of-use agreement that specifically identifies a state of jurisdiction, and set of laws governing blog users' disputes, the blogger will benefit from an ability to rely on the fact that all federal laws, such as the Copyright Act or '230 of the Digital Millennium Copyright Act (DMCA), will allow resolution of a dispute in a state court and allow the blogger to use a state's shield law, if a state, such as New Jersey or Pennsylvania, has a strong one.

Publish a Notice

A notice published in a blog's Terms of Use or elsewhere on the blog can also reduce or eliminate other legal difficulties. For example, if the terms-of-use agreement contains a notice that specifically excludes all users under the age of 13, then the blogger may be able to reduce legal difficulties related to the Child Online Privacy Protection Act (COPPA). Counsel should remember, too, that a blogger may have to take certain actions in addition to posting notices to avoid certain legal difficulties.

Provide Access

A terms-of-use agreement may also be used to supplement enforcement of certain legal rights, such as copyrights. For example, a blogger may want to begin or end each entry with: “This blog is for personal noncommercial use only. If this material is used in another way, please contact [insert e-mail address],” as a means to allow the blogger to take action against infringers.

In addition to a blog using a terms-of-use agreement, the blogger can take advantage of public laws. For example, the blogger can register the blog as an Internet service provider for purposes of the DMCA to reduce or eliminate copyright infringement-related legal difficulties.

Post a Notice

Using an Internet application found at www.uscopyright.gov, a blogger may complete an online form, print it and file it with a payment of $105 to register as an Internet service provider under provisions of the DMCA. After registering, posting a DMCA notice and taking down allegedly infringing content, the blogger is most likely immune from copyright-infringement judgments.

A typical notice begins with an overview such as: “If you believe that the content of this blog infringes your copyrights, provide us with a written notice describing the content, a certification of your ownership and a removal request. Your notice will initiate a content-removal action by the blog.”

The overview is usually followed by a liability notice; for example: “Please be advised that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is infringing your copyrights.”

Finally, a set of guidelines is normally offered to assist the alleged copyright owner proceed. These include information on where to send the complaint and to remind the alleged copyright owner to provide certain information, including:

• A physical or electronic signature of the copyright owner or a person authorized to act on the owner's behalf;
• An identification of the copyright claimed to have been infringed;
• A description of the nature and location of the alleged infringing material;
• The full name, address, telephone number and e-mail address of the alleged copyright owner; and
• A statement by the alleged copyright owner.

What an Owner Statement Should Include

The content-owner statement should have three parts.

First, that the alleged copyright owner believes, in good faith, that the use of the content claimed to infringe copyright is not authorized by law, or by the copyright owner or the owner's agent.

Second, that all of the information contained in the alleged copyright-owner's infringement notice is accurate.

Third, under penalty of perjury, that the alleged copyright owner
is either the copyright owner or a person authorized to act on the owner's behalf.

Some Other Problems

Take this example. In New Jersey, bloggers face four other significant legal liabilities. These include:

• Defamation;
• Intellectual-property infringement (usually copyright or trademark);
• Violation of a third party's rights to publicity; and
• Intrusion into a third party's seclusion.

The defamation claims can usually be minimized by relying on and documenting sources.

The proper use of trademarks will minimize trademark-infringement claims. Proper application of New Jersey's shield law will minimize or eliminate claims related to violation of a third party's rights to publicity and intrusion into a third party's seclusion.

A blogger may also employ some technical solutions to avoid difficulties. For example, by leaving a link in a post to the home page and possibly in any charts or photographs, an unauthorized copy of the blogger's content will allow a subsequent use to be returned to the blogger's domain. Such links also make infringement claims easier to resolve.

Similarly, watermarking content will discourage unauthorized use because of the difficulty of removing watermarks. Watermarks also make infringement claims easier to resolve. Watermarks can be as simple as a copyright symbol used with the blogger's site or maybe associated with a hyperlink to the blogger's home page.

Get Insurance

Bloggers should also consider purchasing errors/omissions insurance. Errors/omissions insurance is a special type of business liability insurance. Most businesses have coverage for certain types of employees, such as insurance agents, real estate agents and brokers, architects and third-party administrators.

Errors/omissions insurance is intended to cover an error or omission ' a mistake ' that causes financial harm to another party; these can occur in almost any transaction in any profession. This type of insurance helps to protect a professional, an individual or a company, from bearing the full cost of defense for lawsuits relating to an error or omission in providing covered services, such as blogging. More often than not, this is a separate coverage from a standard general liability or property insurance policy.

It's possible that existing errors/omissions insurance already covers blogs. Note that some bloggers have been turned down by underwriters because the blogger's content was error-prone and not subject to verification.

Checking usually helps.