Is Your Blog Legal?

Interconnectivity can breed infringement.

March 1, 2008

New technologies and ways of doing business frequently raise new legal questions. The very nature of a blog — with its third-person comments, links, and visual components — makes you, the blogger, vulnerable to legal liabilities from a host of issues including copyright infringement, charges of obscenity and defamation, and fair housing violations.

Risk 1: Infringement

In basic legal terms, copyright infringement occurs when a person copies or publishes an original work written by another person without that person’s permission. Cutting and pasting a written description or a photograph from another page, even if the photo or commentary does not appear to include anything unique, is still usually copyright infringement.

Courts consider four factors when determining whether a particular copy is a fair use of the original work:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  • The nature of the copyrighted work — that is, whether it is a fictional creation or factually based. The more creative the work, the less likely copying material will be protected.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for or value of the copyrighted work. If a broker posts original text with the intent of attracting visitors to its site and a blogger copies the exact text onto another site, the blogger might well be taking away some of the broker’s Web traffic.

If you unintentionally allow others to post infringing materials on your blog or Web site, you do have some protection under the Digital Millennium Copyright Act as long as you don’t screen the posts to your blog, don’t know that the material is an infringement, and remove it when you find out.

Risk 2: Defamation and Obscenity

Blogging also increases your chances of legal liability for defamation or obscenity that creeps into your discussion. Generally speaking, defamation is publication — on the Internet or otherwise — of a false statement about another that causes damage. There is a defense available to blog providers, however.

Under the federal Communications Decency Act, no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. So if a person defames a competitor on your site, you probably aren’t liable, as long as you don’t contribute to the commentary.

Risk 3: Fair Housing

What if a third party posts information on your blog that violates the Fair Housing Act? In a recent case, Chicago Lawyers’ Committee For Civil Rights Under The Law Inc. v. Craigslist, 461 F.Supp.2d 681, the courts found that under the CDA, Craigslist was not liable for discriminatory postings by third parties since it did not edit them. The case is on appeal and will be one to watch.

 

Be Careful out There

At this point, you may feel tempted to either completely ignore the content of postings to your blog or scour each posting for potential sources of liability. Probably neither extreme is appropriate. Blogs can be a fun and effective communication tool for real estate professionals, but a few precautions and a watchful eye can help to significantly reduce the risk of liability.

Guard Against the Other Guy

Here’s one way to limit your blog liability. Add an agreement to your blog that:

 

  • Requires those who post to warrant that all material they post is original and nondefamatory.
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  • Grants you a license to post materials and specifies the terms of the license.
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  • Includes a disclaimer that you assume no responsibility for the accuracy of any information.
  • Also, add a copyright notice stating that information on your blog may not be copied or used without permission.

    John H. Rees is an attorney with Callister Nebeker & McCullough in Salt Lake City. You can reach him at jhrees@cnmlaw.com or 801/530-7388.

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