I’ve been writing digital content since the universe of online content consisted of forums on CompuServe and AOL. A lot of things have changed since I published my first online articles in the 1980’s – but one thing that remains consistent is the shock and surprise that happens when a content marketer or writer gets sued.
Writers and marketers are often very knowledgeable about the subjects they write about – and completely clueless about the limits of what they can and can’t say online. There’s a pervasive myth that the First Amendment to the U.S. Constitution allows anyone to say anything – and that simply isn’t true. For a list of the things that the First Amendment does NOT protect, click here.
Social media and online content litigation is the fastest growing legal specialty in the U.S., and the number of cases filed every month has risen consistently since 2007. The demand for lawyers and judges who understand digital media law is so high that a friend of mine, Dallas attorney Sean E. Tuma, is constantly being asked by bar associations and legal groups to present one of his popular lectures on digital law for lawyers and judges. (If you’re a lawyer, or a content marketer specifically interested in digital law, subscribe to his blog – it’s a wealth of practical, useful information.)
Although much of the rise in litigation has come from the Computer Fraud and Abuse Act (CFAA) and its rules on data security and privacy, the bulk of the litigation in American courts remains focused on five issues:
Copyright Infringement
Tortious Interference
Product Disparagement
Defamation
The Right of Publicity
Three of these issues – tortious interference, product disparagement, and defamation – are somewhat similar. They all boil down to someone posting something negative in an online forum that damages the reputation of someone else (or something else) in a way that is prohibited by law. The number of copyright infringement lawsuits has remained steady over the last five years, while the number of defamation, product disparagement, and tortious interference cases has skyrocketed.
Luckily, it’s fairly easy to avoid putting yourself at risk of losing a lawsuit on these issues if you take time to learn and follow a few simple rules.
Copyright Infringement
There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple. No receipt, no written permission, no link to a Creative Commons license? You lose. The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. Who sets the value? The guy who is suing you.
So, if you can, take advantage of the “safe harbor” provision of the Digital Millennium Copyright Act (DMCA) and remove the offending content as soon as you are notified of a possible copyright problem. Just removing the offending content may not prevent you from being sued or being required to pay damages, but it can reduce the amount of damages owed in a successful suit.
Luckily, avoiding copyright infringement is easy. Simply don’t use material you don’t have permission to use, and if you do use material accidentally — or someone else posts it on your site without your knowledge — take advantage of the “safe harbor” provision of the copyright law that protects unwitting publishers of content posted by others and remove the offending content the instant you receive a DMCA Takedown Request.
Tortious Interference
People who publish product or service reviews on Angie’s List, Yelp, personal blogs, social media sites like Reddit, StumbleUpon, LinkedIn, Facebook and Twitter, and other online forums are the most likely to find themselves the target of lawsuits relating to tortious interference.
A good definition of this can be found in the Farlex Free Dictionary, but it basically means interfering with someone’s ability to do business or encouraging someone to break a contract. It’s a very tempting “crime” when you feel as if you’ve been ripped off or sold a shoddy product. I know.
About six years ago, I had a bad experience with a Dallas flooring company called Peek’s Carpet & Tile, and seriously considered posting what I considered the “facts” about my flooring problems — and the company where I purchased the floor — on every website I could find. My lawyer Charles McGarry talked me out of it by explaining the rules of tortious interference to me — and showing me examples of cases that ordinary people had lost when they did exactly what I had planned to do and “warned other people” about doing business with a firm that they were unhappy about.
To avoid losing a suit for tortious interference, be careful what you say. Opinions are (almost always) protected speech. “I didn’t like the food at Deb’s Diner, and won’t be going back” is an opinion, and you can say that. Saying, “I wish I’d bought my floor from a company other than Peek’s Carpet and Tile” is also an opinion.
Saying, “Don’t eat at Deb’s Diner — the food will make you sick” or “If you live in Lake Highlands, don’t hire Peek’s Carpet and Tile to install a new floor for you” on the other hand is illegal. There are exceptions, of course. If you truly are an expert — a health inspector acting in your official capacity after inspecting a restaurant, for example — go ahead and state the “facts”. Otherwise, stick to opinions. You’d be surprised at how expensive and difficult it is to prove a “fact” in court.
Product Disparagement
Product disparagement and the slander of title are claims that occur when a person “makes a false statement about the title to goods or the quality of goods being offered for sale by a person or corporation, and as a result, another person or persons refrain from dealing with the injured party.”
This includes the review you wrote on Yelp, the rant you posted on Facebook, and the comment you made on your blog. Once rare, these lawsuits are increasingly common as business people find themselves losing customers thanks to online reviews that they believe are false. It’s hard to fight if you’re the blogger or webmaster being sued – and it’s hard to win if you’re the business owner suing. And it’s expensive and time consuming for both sides.
Product disparagement is a tricky question for a lot of bloggers. Words count here, and so does context. If you write product reviews, make sure your policies and procedures on how you conduct them are consistent, and that the rules are applied fairly. There are lawyers and business owners out there who will sue in order to try and get negative stuff pulled from the web, even though they don’t have grounds for a winning case. It’s so common there’s even a name for it: a SLAPP (strategic lawsuit against public participation).
Virginia homeowner Jane Perez became the reluctant poster child for what can happen when you post a review that a court finds to fall under the product disparagement rules. The contractor who didn’t like her one-star review on Yelp sued her for $750,000 – and was awarded damages of over $250,000. Appeals in the case continue, but the costly case has ruined the homeowner’s credit and created a precedent that has encouraged many more business owners to file suit when negative reviews are published.
To avoid her fate, click here for a list of the rules that most legal experts recommend following when writing an online review. The key is to stick to your own opinion, and avoid “fighting words” and calls for others to boycott or avoid doing business with an individual or business.
Defamation
There are different rules for defamation depending on whether the person being defamed is a public or a private individual, and the rules vary from place to place, but in general defamation is the broadest category of potential legal liability for bloggers and website owners.
Here’s the definition of defamation from my copy of the Merriam Webster Dictionary: Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.
Unlike other things that can get you sued, defamation may be a criminal charge in some places if it crosses the line into cyber-bullying or hate speech, or even if it uses the traditional “fighting words” or discloses information that a reasonable person would believe caused harm to the victim. Defamation includes both written statements (known as libel), spoken statements (called slander), and videos, graphics or photographs.
One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter. For instance, you might think that what you posted was endearing, funny, cute, and inoffensive. But if the outcome is that the person is unemployable, or suffers negative consequences, it can be defamatory. For example, a court in Nova Scotia recently handed down a $425,000 judgement against a U.S. blogger that the court found defamed the owners of a fishing lodge by “incorrectly linking the lodge to a Louisiana political scandal.”
Right of Publicity
The right of publicity is the legal theory that prevents the unauthorized commercial use of an individual’s name, likeness, or “other recognizable aspects of someone’s persona”. The online legal library at Cornel University Law School explains this in detail as does the Right of Publicity website.
Until recently, the right of publicity was so obscure that a lot of lawyers hadn’t even heard of it. Recently, though it’s become a favorite tool for litigation.
The right of publicity is what can bite you if you’re one of those people who posts every photo you take on Facebook, with no regard to the preferences or feelings of other people in the photo, or when you use material that is strongly identified with a person. It’s why all those “tribute” bands are “tributes” instead of knock-offs: words matter, and how you present someone else’s intellectual property matters.
So get permission before you publish long excerpts from someone else’s blog (or, heaven forbid, pick up and reblog the whole thing as a “guest post” when they were never asked if they were willing to be a guest blogger on your site), and especially get permission before you publish photos of any identifiable person (that means someone who could be identified in a photo, whether you know who they are or not) without their permission.
A word about celebrities, politicians, and other public figures here: yes, you can take their photo, and yes you can probably use it. But it depends on the context. You can’t say anything that implies that they endorse you, know you personally, or use your product without their very specific permission. Where you see them matters, and what your job is matter, too. The people most likely to lose their jobs or get sued for a breach of the right to privacy are health care workers, cops, teachers, and anyone who works for any government agency.
A word of caution about using photos you find on Flickr, Pixabay, or any other free photo sharing site. The photographer may have granted a Creative Commons License to use the image, but the photographer might or might not have obtained the permission of all of the identifiable people in the photo.
Context is important, too. If you pick up a generic photo of a bell man or hotel desk clerk, the individual pictured could make a claim for defamation (if it might be construed by the reader that the pictured individual provided bad service because the blog post is about a bad hotel experience) or a right of publicity (if it might be construed that the pictured individual is endorsing your product or service).
Photo credit: The photo of the Court of Common Pleas in Dayton, Ohio, was offered on Pixabay under a Creative Commons License.
This post does not constitute as legal advice. For specific information, please consult your legal representation.