Tuesday, March 13, 2012

Bloggers are publishers too - some legal stuff you REALLY need to know

photo courtesy of hello owl

Recently I gave a talk to a gorgeous bunch of bloggers at the Say Hello Workshop, run by Hello Blogger Events. I spoke about the law as it applies to writers - and yes, bloggers, this means you too.

Problem is, if you haven't been taught it, you probably don't know. But you can still be sued anyway!

Now I'm going to mention here I am in no way a lawyer. I am an academic, I teach this subject at university as part of the journalism program. If you have serious issues, or you need thorough advice, please consult a lawyer.

Whew! So formal.

Anyway, what I'd like to do here is give a quick rundown of some things you should be aware of, as publishers. The minute you write something that others read, you are subject to the same laws and conditions as other writers, "professional" or not - and a lot of these things are really not quite clear. Please bear in mind this is a super-basic overview and remember it is specific to Australia.

I also want to remind you to not panic - these rules do sound strict and scary because, well... they are. It doesn't mean that you have to pull every post you've ever written and second-guess every tweet. Just be aware and write smartly. And when in doubt - DON'T!

***

:: First of all, the notion of freedom of speech. I am very sorry to say that in Australia, we have no legally enforceable right to free speech. Unlike the US, where it is enshrined as a fundamental human right in the amendments to their constitution, we have no legal document protecting our right to express our opinions.

What we do have is an "implied" right to freedom of speech. Basically we can say what we like as long as we don't go too far. It is an implied right that is constantly balanced with the right to one's reputation.



:: Which leads me to defamation. This deserves several blog posts of its own, so I'll have to be shockingly brief. Basically, anybody can be sued for defamation. The minute your writing/drawing/video/gesture/facial expression is seen by a third person (other than you and the person you're defaming), you are liable.

That's right - just one other person. It doesn't have to be broadcast to a large audience. It doesn't even have to be a newspaper article or a blog post. It can be a text message, an email, a tweet. It's "publishing" in a legal sense.

In order for defamation to be actionable, it needs to have a "defamatory imputation" - in other words, something nasty about someone. It has to obviously refer to that person... and you don't even have to name them outright. If we can tell who it is to whom you're referring, they can take action. And the last thing is that it's been published to at least one other person.

Imputation. Identification. Publication.

Like I said, you're not safe if you write a post describing someone but stop short of naming them. If they're identifiable even by a handful of people, the injured party can sue.

If you feel you've been defamed, you need to see if it meets the above criteria. Your reputation needs to be damaged. People need to be shunning you, avoiding you, ridiculing you... you're not defamed if you merely feel offended, or you think the other person is nasty. It has to have a real and lasting impact on your reputation. If your reader army comes to your defence, then it's likely you've not been defamed. (Yay for loyal readers!)

You also need to be aware that what constitutes defamation in Australia may not elsewhere. And vice versa... if you retweet or repost something from a country with more lax laws, you could still be liable here.

:: Copyright of your work is immediate. Once you create something it is yours and nobody is allowed to take it. Even if you don't publish it publicly. You do not need to lodge it anywhere, fill out any forms or put a copyright symbol on it. The copyright symbol is a good idea perhaps to remind people that may not be aware of this law, but it is not necessary.

If you are concerned about someone taking your hard work, then keep a record of when you produced it (which is easy in the case of blog posts), and if they've taken it without permission, you have several avenues of recourse - ask them not to use it, to take it down if they have, threaten with legal action, settle out of court, or take them to court. It may just be that someone liked it and wanted to share - not that they were out to undermine you. If you didn't know the law of copyright, it's likely they don't either.

As a blogger, if you want to use someone's stuff - then ask. The problem with the internet is it's so huge and it's so hard to police. If you're going to use a picture and you're not sure of its licensing requirements, then at least link back to the original source. Don't just cite the source as "Pinterest" (boy, that's a whole other blog post), but find the person who created it and provide a link to them. Hardly anything on the internet is free... but if you're not making a profit from it or using it for commercial use then they may be happy for you to use it to illustrate your point. Be prepared to take things down immediately if you've been found to have breached their terms of use.

***

I feel dirty making that so brief, but I wanted to get across a few points that you need to be aware of, and I wanted to do it quickly and without overwhelming anybody.

In my work, I teach from the textbook The Journalist's Guide to Media Law, by Mark Pearson and Mark Polden. It is an incredibly handy reference, written in an easy-to-understand style. Mark Pearson is on twitter here, and his website/blog is here. He has recently written a book called Blogging and Tweeting Without Getting Sued, which I'll be buying as soon as it comes out next month (obsessed much?).

If you have any questions, I can try to answer them or at least point you in the direction of where you might find more information. I hope you've at least found this helpful and maybe cleared up some confusion. I'm willing to bet it's done nothing but created it!

97 comments:

  1. Thanks for the tips Stacey. 

    ReplyDelete
  2. Awesome blog post Stacey. Very clear and a great resource for bloggers. N x

    ReplyDelete
  3. I really wanted to go on the weekend, but alas, 200+ kms and $$ all stood in my way. Thank you for posting that, Stacey!

    ReplyDelete
  4. Thank you.
    Is it okay if I tweet the link to this?

    Now I am being a smartass, but it really is that easy.

    ReplyDelete
  5. Thank you so much for this information.

    Bettina @ http://lovelylittleone.blogspot.com

    ReplyDelete
  6. Wow. So much info I didn't know. I already knew that once you send an email that person has the right to publicly publish it so I always avoid putting nasty things in writing. Not that I'm ever nasty! :-)

    That's why, when writing about close friends or family, I often change their gender or relationship to myself to protect them. They often don't even know that I'm writing about them! 

    ReplyDelete
  7. Thanks so much Stacey for the great information.  

    ReplyDelete
  8. Stacey, I loved your presentation.  Much is common sense but my sense comes from a US background.  I found your talk informative, engaging and very relevant to what we bloggers do every day.

    ReplyDelete
  9. Great post! And from someone who knows her stuff. Thank you!

    ReplyDelete
  10. Maria Tedeschi (Mum's Word)March 13, 2012 at 11:54 AM

    Excellent post. I learnt all this at uni as part of my journalism degree and it's so important to get it out there. Not just for the bloggers who write but for people who claim to be defamed without really knowing the ins and outs of it.

    Love & stuff
    Mrs M

    ReplyDelete
  11. Thank you for taking the time to write this.
    Very very good points that I think everyone should be familiar with.

    ReplyDelete
  12. You said it better than my writing teacher, as part of our Writing for creative industries course we all have to keep blogs, a lot of the students have no idea what you can and cant put on a blog, I might send them this way to read this article

    geof666 

    ReplyDelete
  13. Thank you . It is very clear .

    ReplyDelete
  14. They do if you haven't sent it to them in confidence. If it was obviously meant to be kept between the two of you, they can get in trouble. And yeah, I do the "change identifying characteristics" bizzo a bit too! They've got no idea :)

    ReplyDelete
  15. Yes, I'm slightly passionate! ;-)

    ReplyDelete
  16. It is common sense, but so many people don't know the copyright thing and think they must jump many hurdles to protect themselves. I guess that's not really obvious! I hope this helps them :)

    ReplyDelete
  17. oh yes, lots of people cry "defamation" and it's nowhere near. I love the idea we can all self-publish, but I worry that not everybody knows the pitfalls. I wish there was some kind of blogger law class that we could all go through!

    ReplyDelete
  18. You're very welcome, I hope you find it useful x

    ReplyDelete
  19. Geof! You read my blog? yes, sometimes it's hard to narrow it down to the basics to make it understandable... I've been sitting here all day thinking of all the things I could have included. If anything, this will give it to 'em quick :)

    ReplyDelete
  20. Ohhhh the things I wanted to include! But in the interests of clarity I declined. I'm pleased it worked. Thanks for your kind words xx

    ReplyDelete
  21. Awesome post! As someone who works in the marketing and copywriting industry I forget that some people aren't aware of all this mumbo jumbo. Nice work laying it out clearly.

    And... you looked gorgeous at the presentation - love that yellow skirt!

    ReplyDelete
  22. This is so drummed into me as a journo. I'm glad someone's spreading the word to bloggers too. Well done. x

    ReplyDelete
  23. It honestly worries me what I see written sometimes... I'd hate for someone to get in trouble just because they don't have the benefit of learning like we did xo

    ReplyDelete
  24. Thank you heaps for this post I'm studying also the course I'm studying is Undergrad Bachelor of Criminology & Criminal Justice via OUA as well as Introduction to Writing via OUA.

    You have a great website & am now following you on twitter.

    (((( Hugs )))) XXXX Kisses XXXX

    ReplyDelete
  25. I'm pleased it was helpful! good luck with your studies.

    ReplyDelete
  26. Deb @ Aspiring MumMarch 13, 2012 at 7:41 PM

    Thanks so much for this! I was disappointed not to make the workshop on Sunday, so I'm gleaning all the information I can from those who were there!

    ReplyDelete
  27. Sooo if I post something that is true for me and I name a company and its not the most flattering thing, is it still defamation? or just an opinion? 

    ReplyDelete
  28. It would depend what you said. If it is your honest opinion, based on fact, then you could have a defence. If you didn't say anything that damaged their reputation, it's probably not defamation. You're reasonably covered with the honest opinion defence if you were reviewing something. Depends on how far you go with your criticism and how much it impacts them.

    ReplyDelete
  29. It was so great to hear your presentation on Sunday- Heavy info delivered in an understandable, accessible way. Thanks, Stacey!

    ReplyDelete
  30. You are a clever cookie, Stacey, and whoa baby... that's some serious stuff there and now I'm freaking out and may never write on my blog again.

    Original source of pictures you say... eeek, if only I could find them!!! I am the worst at 'via weheartit', via this, via that. But all links seem to lead back to those dreadful Tumblr blogs who credit nothing, ever but the pictures are so pretty and I want them and... yes, I take your point. 

    Oh and now I'm off to click on that button in your sidebar that says 'menu plans' because I'm aaaaalll about the menu planning right now. Ta!

    x

    ReplyDelete
  31. Straightforward & very clearly written Ms Stacey! Top of the class.. Yours.. Seriously it is so important to have this in writing - when we had The Law drummed into us by the Department of Education's team of lawyers it can sound incredibly scary. we were told you "won't lose your house" if there is no intent nor malice in relation to our management of a school where a parent or kid was suing. The Dept covered us. But, as independent bloggers (publishers) it is us personally who must ensure no way the words can be a source of legal action.
    I am following the Prof as above now, and will be interested in his book.
    Another aside, when I moved from blogging for free (and still do!) into the world of advice & consultation I needed to ensure I had coverage through professional indemnity.
    Ah, the world... We need to be covered against ourselves really!
    Great topic, and you are a great teacher too!!

    ReplyDelete
  32. Brilliant, very informative Stacey. I was browsing the web for copyright info when I first started my blog, it's not always easy to find information on the bare basics. 

    Thanks for sharing your knowledge.

    ReplyDelete
  33. Thank you for bringing up a subject that is in the back of all of our minds. Very reassuring. 

    ReplyDelete
  34. Thank you for this Stacey!! Brief it may be, but you have made it very easy to understand!

    ReplyDelete
  35. I'm pleased you got something out of it! It's always a challenge to set this kind of thing out in understandable bits.

    ReplyDelete
  36. Haha oh darling, I've definitely noticed your penchant for crediting the wrong source but to be honest... the internet is BIG. the likelihood of you getting into real trouble is infintesimal. And if there really was a problem, they'd be going after Pinterest and not really you! I'm guilty of using stuff without asking, but I try to get the proper credit. At least you're not one of the people I've emailed in a panic going "oh my god, take that down! DO YOU KNOW WHAT THE HELL YOU'VE JUST DONE?!!"

    And if I could punch Tumblr in the face, I probably would. Although they're probably running decoy for the rest of us, being so blatant about their uncredited sharing. Who's got time to worry about what we're doing when they're breaking every rule known to publishing?!

    Hope you found something to inspire your plans... xx

    ReplyDelete
  37. Yes, the internet is a wild frontier... if you're self-taught and self-published, nobody ever tells you these things!

    ReplyDelete
  38. It's all written in legalese, that's why! If you have any questions, please ask. If it's any consolation, I've always been impressed you've credited your pictures correctly even though you might not have known the ins and outs of copyright xx

    ReplyDelete
  39. Yes, I wonder how often anybody thinks of this!

    ReplyDelete
  40. I can always expand later, if anyone's interested! I've had a few requests for a Pinterest post x

    ReplyDelete
  41. I knew this would be a great post and it was!
    I don't know much about defamation but the copyright info I have learned from working ion graphic design has me cringing over and over when I see people using images without permission... and even using images from big companies and corporations and then changing them to be less than flattering.... eek!

    So glad that this information is getting out there, ignorance is no excuse!

    ReplyDelete
  42. Oh my gosh, I know - when they photoshop a picture or words or something over a logo? Gah! The whole crediting pinterest or tumblr drives me spare. And the recent raft of putting pictures on facebook without crediting the creator? I feel a post coming on!

    ReplyDelete
  43. A friend just sent me this link as I posted yesterday about what you can do when your blog gets pirated by a spammer - grrr... as has just happened to me.  If you have any further insight into this topic I would love to hear about it.  I have submitted complaint forms to google but would love to do more.

    ReplyDelete
  44. Oh spammers are incredibly difficult to trace... unfortunately there isn't much you can do, and even less that Google can. Did they do much damage?

    ReplyDelete
  45. Not damage to my own blog but just having a copy of my own photos (& of my children) on a blog used for spamming makes me feel sick.  Always the risk when you put your stuff out there, I know.  I just hope google disables the right blog if they even do anything.

    ReplyDelete
  46. Can you imagine how many requests they get for this every day?! It's outrageous. And really - they're not in control of the content of each blog. Is there a point of contact for the blog itself? You can start by asking them to take it down... a lot of them are in a foreign language though, and very hard to get in contact with. There is a function you might want to employ that stops people from right-clicking on your blog, so they can't save your photos, and they can't cut and paste your copy. Not much help if they've got it RSSed into a reader though. Worth a try, maybe?

    ReplyDelete
  47. I think that's a good idea. I see so many people using images from places like Pinterest and crediting it with 'Pinterest' and then even modifying the images. Sure - most people might not mind if it's not for profit, but some  will...

    ReplyDelete
  48. Of course they will! Especially if they find out. While not everyone will stop, at least I'm spreading the message :)

    ReplyDelete
  49. Thanks so much for sharing this succinctly. 
    I always wondered about the copyright status and this cleared it up brilliantly.

    ReplyDelete
  50. Thanks for a very insightful blog post! Always great to be reminded of it again! 

    ReplyDelete
  51. This is ace Stacey, thank you! I don't put an image up unless I can trace it back to the original source cos of "good manners" but the legal part scares me enough for images to no longer be compulsory for me. Much food for thought lovely. Xxx

    ReplyDelete
  52. Most excellent post and very much a well crafted expose' on copyright and the legalities. Thanks a bundle.

    ReplyDelete
  53. such a good post! and i'm sure a ton of bloggers really don't know these basics! you're a saint! :-)

    ReplyDelete
  54. Excellent post - thank you so much for sharing this here -I wish i could have come to the workshop. As an American I remember being so surprised to learn (after living here a while) that there was no freedom of speech here. Thanks for clarifying about defamation - not that I plan on anything ; ) but you really made it all clear to me now.

    ReplyDelete
  55. Oh, fabulous! Please let me know if I can help in any other way.

    ReplyDelete
  56. A refresher never hurt anyone :)

    ReplyDelete
  57. I know and that's what scares me! I hope it keeps some boys and girls out of trouble :)

    ReplyDelete
  58. haha smartass or not it made me laugh!

    ReplyDelete
  59. It's incredible how many people think we have it. I guess we just watch too many American TV shows! We'll have people trying to plead the fifth next.

    ReplyDelete
  60. Hi Stacey - thanks so much for mentioning my work in a great blog. Looking forward to reading more and sharing with my foodie daughter. My book 'Blogging and Tweeting Without Getting Sued' is now available in print and ebook. Your readers just need to Google it or 'journlaw' and they'll get the details. Cheers, Mark

    ReplyDelete
  61. Hi Mark - thanks for stopping by! I've found it's become such an issue with bloggers now I had to say something. I am SO pleased you wrote your new book, and I'm off to buy it right now. Wonderful timing! Will let my readers know, and I hope your daughter finds some foodie inspiration :)

    ReplyDelete
  62. So is it defamation when you tell the truth about someone?  A fact that they're trying to hide?

    ReplyDelete
  63. No. You're just bringing their reputation down to its true level. They can still sue you, but truth is a pretty handy defence. You do need to be able to prove it in court though.

    ReplyDelete
  64. The evidence is already in court documents and police records.

    ReplyDelete
  65. well it's entirely up to you if you want to put this sort of thing on a public blog. You must write fairly and factually, and not present your opinion as fact. It must be a balanced account and under no circumstances should you be malicious, or have an ulterior motive for making it public. Once you do it solely to hurt the other person for your own gain, you lose a great deal of defence in court. Presenting facts and your feelings and opinions based on those facts clearly and honestly can be defensible.

    ReplyDelete
  66. Brilliant post. The other scary thing to note with defamation etc is that you're bound by the law where the offense occurs so if I'm sitting in an Internet cafe in Singapore and read a blog post that defames me, technically I had an option to pursue it through the Singaporean courts and Singaporean law rather than come back to Australia and deal with it there. So as international publishers we have to be super aware of not just australian law but the law on other countries.

    ReplyDelete
  67. You are so smart and beautiful. Can you answer me if the defamation laws are still different in different states? Truth used to be a defence in Victoria but not here in QLD - is that still the go? And how does that work if you publish across borders - ie, through blogging? xx

    ReplyDelete
  68. Agree - some posts of late have scared the socks off me!

    ReplyDelete
  69. Maxabella, I've been given this great link which helps you to find the original sources of images: http://jarred.github.com/src-img/ - you just drag it to the bookmarks bar in your browser, then click it when you're on a page with the image you want to track down. Too easy!

    ReplyDelete
  70. We have uniform laws now, so truth is a defense in all states. Within-Australia borders are all similar. Defamation occurs where it is read/downloaded, not where it is written. So we must be aware we may be defaming in other countries. Given we're one of the strictest countries, it's not usually us that is in danger xx

    ReplyDelete
  71. Stacey you did an awesome job presenting this to us last weekend! So glad I was there :)  

    ReplyDelete
  72. Good to know - and I wish all laws and regulations were the same throughout Australia!

    ReplyDelete
  73. Hi Stacey,

    Such an informative and education post! Definitely need to spread the word among the blogging community. I actually work at the same university as Prof Mark Pearson and am going to a special session he is holding for all of our marketing staff - so I am looking forward to that even more now! 

    Tabitha
    www.tfortabitha.com 

    ReplyDelete
  74. Thank you so much! I hope you got something out of it.

    ReplyDelete
  75. Oh how easy would that make everything! Idiots.

    ReplyDelete
  76. Ooh you lucky thing! He is a wealth of information. Make sure you soak up all you can xx

    ReplyDelete
  77. ah this is great.. I feel I have a whole lot of pictures I need to go back and post their source.. I've really only just become aware of all this legal stuff.. eek!!  

    ReplyDelete
  78. Thanks for this, well done in making it understandable! Even us journos need refreshers too.

    ReplyDelete
  79. hahah everyone gets that feeling! I want to delete my tumblr and clean up my Pinterest boards (that one I will do)... when you know better you do better xx

    ReplyDelete
  80. Ok, I have a question for you. How do you stop being a smartie pants because you know so much now after this informative article and the even better workshop talk? Hmmmmm...? 
    ;)

    ReplyDelete
  81. Haha I stop when people ask me questions I don't know the answer to! Like now!

    ReplyDelete
  82. Just found this post - thank you. That book has just come out, hasn't it? I must get a copy. xx

    ReplyDelete

There was an error in this gadget