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Originally published in the Aviva Directory, May 1, 2007

While the Internet still retains some of the “wild wild west” feel, increasingly Internet activity, and particular blogging, is being shaped and governed by state and federal laws. For US bloggers in particular, blogging has become a veritable land mine of potential legal issues, and the situation isn’t helped by the fact that the law in this area is constantly in flux. In this article we highlight twelve of the most important US laws when it comes to blogging and provide some simple and straightforward tips for safely navigating them.

1. Whether to Disclose Paid Posts:

   Over the last five years bloggers have begun to displace traditional media outlets as individuals’ source for reliable information and recommendations. This development has created big opportunities for advertisers to get bloggers to endorse a product or service, primarily through posts or affiliate links. But as the practice and influence of bloggers has grown, US law has come to govern this area.

   What is the law?

   The Federal Trade Commission published a recommendation that companies who promote their product through word-of-mouth marketing must disclose these relationships. The recommendation applies explicitly to blogging, meaning that bloggers must disclose the fact that they are being paid to promote or review a product whenever that is the case.

   PayPerPost and ReviewMe are websites that link advertisers up with bloggers that want to earn money for writing about their products. In light of the FTC recommendation, PayPerPost and ReviewMe bloggers are now required to disclose the fact that they are being paid for their endorsement. But beyond these two sites, there is a much larger industry of “Buzz Advertising” which takes place through informal emails and payments between bloggers. The letter of the FTC recommendation includes these informal payments as well, meaning that even under the table reviews must be disclosed. But considering that to date no blogger has been prosecuted for violating the FTC’s recommendation, it isn’t yet clear how strict the FTC is going to be or the punishments that will be imposed.

   How to stay out of trouble:

   1. NEVER claim that you are an objective, unbiased source if you are being paid to provide information.
   2. ALWAYS make it easy for your readers to distinguish between advertising and editorial content.
   3. CONSIDER that even though the FTC’s paid review disclosure recommendation doesn’t appear to apply to links, meaning that webmasters aren’t required to “NoFollow” the paid links they give as of now, scholars at the University of Chicago Law School are currently discussing this as a future development for e-commerce law.

2. Is Deep Linking Legal:

   One of the biggest advantages that blogging has over traditional media is the convention to include links in an article which connect the reader directly with the source. The links could direct the reader to a file, a different page on the same site or to a new site altogether. Despite the generally helpful nature of linking and the internet’s open platform, however, linking is not free from US government regulation.

   What is the law?

   The biggest issues in linking right now revolve around copyright law and deep linking. Deep linking involves a blogger who places a link on his site that leads not to the front door of a site (e.g. AvivaDirectory.com), but instead to a particular page within that site (e.g. www.AvivaDirectory.com/successful-blog-launch).

   Currently, there is no law that explicitly bans all deep linking to content you do not own. However, courts have declared that individual deep links are in violation of state law if they are not cited correctly. Thus, it is clear that passing off someone else’s work as your own by linking to a site in a manner in which it appears that the linked to content is a part of your site, is considered copyright infringement and it violates state laws that govern competitive business practices. But, it also appears that if you make it clear that the deep link you are providing isn’t to your own site then you are in the clear. The leading case in this area is Ticketmaster Corp. v. Tickets.com, Inc. where TicketMaster argued that a deep link by Tickets.com to a TicketMaster actual ticket purchase page was a copyright infringement because traffic was routed through the back door of the site. Thus far, however, no court has found that deep linking by a blogger is a copyright infringement or trespass.

   How to stay out of trouble:

   1. NEVER claim that a page or site is your work unless it actually is.
   2. ALWAYS clearly distinguish between your work and someone else’s.
   3. CONSIDER that deep linking is a pretty well-established blogging practice, so if you’re deep linking to other bloggers or newspapers, you’re probably fine. But that doesn’t mean that every other blogger knows the law, so you’re likely to get an occasional angry email. If you want to play it ultrasafe, consider emailing the webmaster for permission and including a front page link next to your deep link.

3. The Legal Use of Images and Thumbnails:

   Images are an important way to make your posts visually more appealing and to keep the reader interested and engaged. Often, rather than creating the images they use themselves, bloggers simply use other images that they find or purchase online. Because of the obvious copyright issues with just copy and pasting someone else’s picture from their site to yours without permission (it’s a clear violation of US law), bloggers have come up with two alternative techniques for using the images of others, inline linking and thumbnails.

   Inline linking is a way of linking in which the picture appears on your blog as though it were part of the page the reader is viewing, but in fact the image is pulled from another site altogether when the page is loaded. Thumbnails, are simply smaller lower quality versions of the same image which link to the source.

   What is the law?

   Unfortunately, the law on inline linking isn’t straightforward. With image links courts are concerned both with copyright infringement and trademark infringement, which in simple terms means they want to stop bloggers from passing off someone else’s name or trademark as their own. At this point, the only way to be safe is to get permission directly from the creator of the work or to get your images through sites like Flickr which offers creative commons images or istockphoto where you can cheaply purchase royalty-free images.

   The law on thumbnails is a bit clearer. As long as you are actually creating thumbnails, which have standardized dimensions, and aren’t just reducing the size of an image slightly, a US Circuit court has held that thumbnailing is protected under the fair use exception of Copyright Law.

   How to stay out of trouble:

   1. NEVER inline link or upload images that don’t belong to you, without the owner’s permission.
   2. ALWAYS purchase or use creative license pictures if possible.
   3. CONSIDER that even though courts have stated that thumbnails CAN fall under the fair use exception, it doesn’t mean that all thumbnails are necessarily legal. There are four factors that court’s use to decide if something qualifies for fair use, and given that only a few courts have considered the issue, don’t be surprised if some thumbnails that don’t meet the four factors are deemed illegal.

4. Laws that Protect You From Stolen Content:

   There’s nothing more infuriating than seeing the article you worked on for hours and hours appear in full on another site without any credit given. Even worse, is when their version of the article shows up higher in search engine rankings than yours. Thankfully, copyright law protects original expression, providing you with a legal recourse if your content is stolen.

   What is the law?

   Your work is protected under copyright as soon as it’s created. No record or registration with the U.S. Copyright office is required for this protection. However, you can register your work with the U.S. Copyright Office to create a public record of your claim. If you believe that your work has been stolen, you can file a copyright infringement lawsuit against the offending party. These cases are treated as strict liability tort, meaning you only need to prove that the copying occurred, the intent of the offense is irrelevant. Most successful lawsuits result in monetary awards along with injunctions against future infringing uses.

   Usually the important question isn’t whether you can win your case, its whether its worth enforcing your judgment. By and large it is impractical to enforce a judgment on someone in a third-world country simply because the cost of pursuing the claim is a lot more expensive than anything you’ll ever get out of it, that is, even if you can get jurisdiction over the person.

   How to stay out of trouble:

   1. NEVER simply blow off the fact that someone has stolen your work. You may not always be able to enforce your claim, but its always at least worth a quick cease and desist letter.
   2. ALWAYS remind would-be thieves that your work is copyrighted by making note of it on your webpage.
   3. CONSIDER the costs and potential benefits before pursuing a copyright infringement claim. If you can’t collect, it’s a good idea to get over your ego and try non-legal remedies such as letters, reporting the offender to search engines, or just asking for a link in return.

5. Domain Name Trademark Issues:

   If you’re just starting out as a blogger, chances are you don’t have a trademark yet. However, large corporations do. If you’ve registered a domain name that a trademarked entity can lay claim to, you may have to give it up.

   What is the law?

   In November 1999, Congress passed the Anticybersquatting Consumer Protection Act, which makes it easier for individuals and companies to take over domain names that are confusingly similar to their names or trademarks. However, bringing a trademark infringement case before the court can be a long, drawn-out, expensive process. The Internet Corporation for Assigned Names and Numbers (ICANN) decided to streamline the process by creating the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, only three things need to be proven:

   1. The trademark owner owns the trademark,
   2. The party that registered the domain name has no legitimate right or interest in the name, and
   3. The domain name was registered and used in bad faith.

   The UDRP has made domain name disputes faster, cheaper and universal. It also tends to favor trademark holders.

   A leading case in the area of trademark disputes is Continental Airlines, Inc. v. continentalairlines.com. In that case, the dotcom was simply re-routing visitors to a travel site where they could purchase Continental Airline tickets plus pay an extra $15 fee to use the service. The court awarded the domain to the Airline on the basis of trademark infringement.

   While easy cases like Continental are relatively clear, a number of bloggers have had their domains taken from them in less clear situations. For example, the terms “no legitimate interest” or “bad faith” can be confusing and lead to honest bloggers losing domains.

   How to stay out of trouble:

   1. NEVER register a domain in the name of an existing trademark. The days of profitable cyber squatting are long gone, and attempting to do so today will only cost you time and money.
   2. ALWAYS check online to verify that there aren’t any public trademarks already registered for your domain.
   3. CONSIDER that a free search will only reveal the registered trademarks (and not even a complete listing at that). A name need not be registered in order to receive treatment as a trademark by courts. One of the best ways to do a free check for these “common law marks” is to simply do a search engine search for the name of the domain you want to use as well as some common variations.

6. Handling Private Data About Your Readers:

   If you’re building a readership for your blog, you may want to start an email subscription list, enable comments or create a bulletin board. The use of these features may require your readers to disclose personal information to you, and depending on the nature of that information you can open yourself to legal issues.

   What is the law?

   Unfortunately there is no single law governing the privacy of information disclosed to webmasters in the US. Instead, bloggers must comply with what seems like a maze of legal jargon contained in acts such as HIPAA, P3P, the U.S. Code of Fair Information Practices, and the California Online Privacy Protection Act.

   Given the dizzying array of laws which govern private information, it might come as a surprise that following just a few guidelines can keep you legally protected. The easiest way to protect yourself from liability concerning the privacy of users is to post a privacy policy in a place that is easily visible on your site. In the policy, explain exactly how you use personal information and with whom you intend to share it. Disclose how or if you use cookies or any other kind of tracking software.

   In addition to a privacy policy, you will need to provide a clear process for opting out or modifying disclosed information. This can be as simple as providing an email address for the person to opt-out. Further, there are additional legal landmines concerning the collection of data for minors as well as medical and criminal data. Unless it is absolutely necessary (in which case you should consult a lawyer to plan your data collection strategy) just avoid this type of information altogether.

   How to stay out of trouble:

   1. NEVER share or sell sensitive information such as social security numbers, credit card numbers, bank account information, criminal background or health records.
   2. ALWAYS post a clear privacy policy stating your intentions for collecting private information along with an opt-out plan.

   3. CONSIDER that attempting to collect or sell information about your readership that you haven’t made clear in the privacy policy is not only likely to cause you legal problems, it is a sure way to lose the trust and reputation you have built up through your blogging.

7. Who Owns User-Developed Content and Can You Delete It:

   For those of you who have opened your sites up to user-driven content, be it comments, reviews, or a bulletin board, the question of who legally owns the content is an important one for deciding what you can and cannot do with it. Thankfully, the answer is pretty straightforward, and so are the solutions for dealing with it.

   What is the law?

   It may come as a surprise to many bloggers, but you do not actually own the user-driven content on your site. Instead, it is actually the copyrighted property of the author. The analysis is pretty straightforward; copyright law only requires that an author create an original work and write it out in order to grant that person a copyright. The fact that you do not own the user-driven content on your site can create a number of headaches for bloggers, such as an obligation to remove a comment whenever the author requests.

   But by including a terms of service which spells out that you will have a license in all content posted in the site and more specifically that you will not have a duty to modify or withdraw posts but you may do so if you choose, you can ensure that you have effective control over the user-driven content on your site even if you do not have actual ownership of the content.

   How to stay out of trouble:

   1. NEVER treat comments as though you own them by manipulating them or deleting them without having included a terms of service which gives you permission to do so.
   2. ALWAYS include an extensive terms of service that explains all of your rights with respect to user-driven content.

   3. CONSIDER that if you are allowing anonymous posts you will have no way of verifying the true owner of a comment when someone emails you asking for you to take a comment down. Consequently, you should make sure to at least collect basic identifying information before allowing someone to comment or post on your site.

8. The Duty to Monitor Your Blog Comments, and Liability:

   For those of you who have opened your sites up to user-driven content, be it comments, reviews, or a bulletin board, you may have had to deal with finding slanderous, libelous, copyright infringing, or just plain hateful speech content on your site. Even though you as the webmaster didn’t have anything to do with the content, people inevitably look to you to fix the problem or even to blame when someone gets hurt. This raises two important questions for you the webmaster; are you required (or allowed) to turn the offender’s name over to authorities, and what is your duty to monitor the user-generated content?

   What is the law?

   Section 230 of the Communications Decency Act governs a blogger’s liability for user-generated content. Thankfully, Section 230 carves out broad protection for bloggers with only two exceptions. The law was designed to encourage free speech by allowing ISP’s, bloggers, and message board webmasters to focus on building participation rather than on the potential liability of getting sued for some user’s crimes. But while it protects bloggers from things like having to monitor for defamation, slander or hurtful talk, the law does not provide protection for federal crimes or intellectual property violations, meaning that you can potentially be found contributorily liable if this type of behavior takes place on your site.

   When it comes to the question of whether you must (or can) turn over the poster’s contact information to the authorities if a suit is brought, the answer is even less clear. A leading case on the issue is Doe v. Cahill, in which the court required the service provider to identify the anonymous poster. But other courts have gone the other direction, and congress is currently revisiting the issue. At this point, the safest path is probably to explicitly state in the terms of use that you will turn over the information to any and all requesting authorities so that you will be covered if the issue ever comes up. It isn’t a perfect solution, but until the law clears up, it is a lot better than getting sued.

   How to stay out of trouble:

   1. NEVER allow criminal comments or stolen content to remain on one of your sites. Users may complain that you’re stifling their free speech, but when it all boils down you simply cannot afford to be sued.
   2. ALWAYS include in your terms of use that you will disclose all user personal information to requesting authorities.
   3. CONSIDER that moderating your message boards for federal criminal behavior and intellectual property infringements is not just an important way to keep on the right side of the law, it also sets the tone for the type of content that is permissible on your site and will help foster a friendly and collegial environment.

9. Basic Tax Law Issues in Blogging:

   If your plan is to make money while doing what you love, you may be receiving revenue from ad sales, donations and items for sale on your site. While it is great that you’re developing revenue through your blogging, unfortunately Uncle Sam is going to want his cut. But because blogging for dollars and e-commerce are relatively new developments in the world of tax, the laws governing your e-business or blog can be rather confusing.

   What is the law?

   If a business selling goods over the Internet has a physical presence in a state or local area, then they are required to collect sales tax from customers in that area. Some businesses are finding a way around this by claiming that their e-commerce is a separate, unrelated entity from the physical store. However, states are beginning to clarify their laws to combat this practice. Thankfully, if you are just selling goods over the Internet and you do not have a physical, brick-and-mortar business, the Supreme Court has clarified in Quill v. North Dakota that you are largely exempt from collecting a sales tax.

   Even if you are exempt from state sales taxes, you will almost certainly have to pay federal income taxes on any income your sites bring in. But just because you have to pay income tax, however, doesn’t mean that you can’t be smart (and still legal) in the way you pay it. The best way to reduce your taxable income is to make sure that you are taking all of the relevant tax deductions. For example, if you do your blogging at home, you may qualify to use portions of your internet costs, utility bills, rent, mortgage interest and insurance as deductions through business use of your home exemption. Though you may want to play things even more conservatively by just taking other legitimate deductions such as the computer and research costs you undergo.

   In addition to taking all of your deductions, you should also focus on the structure and strategy of your e-business. One of the best ways to minimize your long-term taxes as a blogger is to make sure you hold a site for longer than a year before you sell it, so that it will be taxed at the lower long term capital gains rate of 15% rather than as ordinary income. Another is to make sure that you are investing up to the legal annual limit in a tax free retirement account.

   How to stay out of trouble:

   1. NEVER throw away business receipts, if you get audited they are the only defense to the IRS.
   2. ALWAYS take advantage of your available deductions and factor in tax consequences into business decisions.
   3. CONSIDER that the difference between something being taxed at the long term capital gains rate (15%) and the short term capital gains rate (35%) is so drastic that it occasionally may be worth passing up on a sale in order to make sure that you have held a domain longer that one-year so as to qualify for the lower tax rate.

10. Limited Liability Laws and Incorporating:

    When you started blogging you probably imagined it as a pure hobby rather than a business involving serious legal issues. That’s why the vast majority of bloggers are currently operating their business as a DBA which is the default and which offers no legal protection. Bloggers are often confused as to whether they need to form a legal entity for their business, what kind they should form, and how much protection it offers. Thankfully, the answers to these questions are relatively straightforward.

    What is the law?

    Forming a legal entity, whether it be a Corporation, an LLC or an LLP, all provide limited liability. Limited liability means that when something goes wrong and someone sues the company, they can only get to the assets that are in the company and not to your personal assets such as your personal bank account. The protection offered by a limited liability entity isn’t perfect, but if you keep your personal and business finances separate, make it clear when you are acting as a representative of the company, and otherwise act like a company, the courts will generally treat you like one as well.

    Most Fortune 500 companies today are Corporations, which leads many bloggers to believe that there is something desirable about forming that model for themselves. The truth, however, is that for almost every single blogger forming an Limited Liability Company (LLC) is the way to go. An LLC carries all the same legal protections as a Corporation (in fact courts apply the exact same statutes to both), while letting you avoid all of the administrative hassles and giving you a better tax arrangement.

    Forming an LLC is a quick and relatively cheap process:

    1. Choose a name for your business that complies with your state’s LLC rules.
    2. File articles of organization with your state’s LLC filing office.
    3. Create an operating agreement to set up the rules for ownership and operation among your members.
    4. Obtain any licenses and permits that may be required for your business (not applicable for most bloggers).
    5. Additionally, some states may require that you publish a notice of your intent to form an LLC.

    How to stay out of trouble:

    1. NEVER mix your personal funds and company funds if you want to preserve your limited liability protection.
    2. ALWAYS form an LLC rather than a Corporation (Inc.) unless there are very specific reasons which apply to your unique case.
    3. CONSIDER the state you form your LLC in determines the law and to some degree the state taxes that apply to your company. The vast majority of LLC’s are formed in Delaware or Nevada because of the strong legal entity caselaw in those states which tends to favor companies over individuals in lawsuits, but at a minimum creates a set of clear laws for companies to use if something goes wrong.

11. Spam Laws and Which Unsolicited Emails are Legal:

    We all hate the Viagra and Yahoo! Lottery emails that fill up our junk folder everyday. But what about your site’s newsletter, that couldn’t be considered spam could it? Unfortunately it might if you don’t comply with all of the requirements on mass email that US law requires.

    What is the law?

    The CAN-SPAM Act of 2003 requires the labeling of unsolicited, commercial e-mail as well as opt-out instructions for recipients, including the sender’s physical address. False or misleading header information and deceptive subject lines are also prohibited. Each violation of these provisions is subject to fines of up to $11,000.

    If you are planning to send out a mass email, you should be clear about who you are and your purpose for emailing the recipient. Make sure that all of your routing information is accurate and don’t get too creative with the subject line. Include a valid physical postal address. Finally, provide detailed instructions on how a recipient can refuse future emails from you. You can give them a menu of choices for opting out of certain types of emails, but ultimately whatever you offer must be clear and you must offer a way for the recipient to stop receiving all commercial emails from your address.

    How to stay out of trouble:

    1. NEVER use false or misleading information in the header or subject line.
    2. ALWAYS identify the email as commercial, identify yourself, state your purpose and include information on how the recipient can opt out of future unsolicited emails.
    3. CONSIDER that courts aren’t clear on what qualifies as ‘mass email.’ While almost every spamming suit brought has been against the prototypical person sending 10,000 Viagra emails a day, in theory, the person sending 150 unsolicited emails with a misleading title is also in violation.

12. Are Bloggers Protected from Journalism Shield Laws:

    Whether the local newspaper reporter is ready to admit it or not, bloggers have begun to supplant traditional print reporters as leading journalists. Unfortunately, the laws that have protected print journalists from revealing confidential sources do not always map easily onto the role that bloggers play in media. Thus the question of whether a blogger will be legally permitted to keep his source’s information confidential if subpoenaed isn’t an easy one to answer.

    What is the law?

    Bloggers acting as reporters can be excluded from shield laws that have traditionally protected print media reporters. Currently, 31 states and the District of Columbia have recognized shield laws through state law, while judicial decisions have provided reporters protection in another 18 states. As the laws have been interpreted, however, they only apply to journalists in the traditional formal sense. That doesn’t mean that they exclude bloggers altogether, only that for a blogger to qualify for protection he must meet the standards laid out by the courts for “traditional journalism.”

    The basic question if you wish to receive shield law protection, is whether you fall within your specific state’s definition of those covered. And unfortunately every state is different. While some specifically limit the privilege to print media, those that are open to including bloggers often look for the exercise of editorial control. Editorial control includes qualification of your sources, fact checking and considerations of credibility. Basically, you need to treat your blog as though it is actually putting forth fact as opposed to your opinion, and then take regular steps to ensure that the facts you present are accurate.

    How to stay out of trouble:

    1. NEVER assume that you are protected by shield laws.
    2. ALWAYS exercise editorial control and investigate your state’s shield laws to see the specific criteria for qualifying for protection.
    3. CONSIDER that there are currently efforts underway by respected organizations who are arguing for the extension of shield laws to cover both formal and informal blogger journalists. But while bloggers in the future may be afforded this protection, today you need to do the research to know where you stand.

OTHER RESOURCES

1. Create your own legal forms for free.
2. Brush up on your legalese at eLibrary.

OTHER REFERENCES

1. Bitlaw – Linking and Liability
2. ECommerce Times – Federal “Shield” Law May Not Protect Bloggers
3. Internet Law Library
4. National Association of Professional Insurance Agents – FTC Says National Do-Not-Email Registry Not Yet Feasible
5. Ius mentis – Give Me That Domain Name!
6. Internet Attorney – Internet Privacy Law
7. FindLaw – Why You Can’t Sue Google, Tax on Internet Sales
8. Internet News Unlimited – Internet Home Business Entrepreneurs are Saving Thousands in Income Taxes
9. The Hometown Advantage – Internet Sales Tax Fairness
10. Domain Name Journal – Tips on Proper Reporting of Your Domain Name Sales on U.S. Personal Tax Returns
11. Media Resource Law Center – Legal Actions and Developments Involving Blogs

Disclaimer: Legal Information is Not Legal Advice

This article has provided information about the law designed to help readers better understand the legal issues surrounding blogging. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we have conducted research to better ensure that our information is accurate and useful, we insist that you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is accurate. To clarify further, you may not rely upon this information as legal advice, nor as a recommendation or endorsement of any particular legal understanding, and you should instead regard this article as intended for entertainment purposes only.

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