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!