Nearly everyone understands that social media litigation is increasing rapidly. But many marketing professionals are unaware of the laws that affect bloggers and social media users.
The truth is that the 5 easy ways to beat social media or blog lawsuits all boil down to one thing: Don’t make the common mistakes that wind up setting new standards in social media litigation nearly every week. It starts by understanding the laws that affect bloggers and social media users. So here’s our list of the five most common lawsuits filed in this area, with our list of 5 easy ways to beat social media or blog lawsuits if you wind up on the wrong side of the case.
#1: Copyright Infringement
Copyright infringement is the most common type of lawsuit filed against bloggers and social media users. But it’s fairly simple to avoid this kind of trouble. First of all, don’t use material you don’t have permission to use, and if you do — or someone else posts it on your site without your knowledge — take advantage of the “safe harbor” provision of the copyright law, and remove the offending content the instant you receive a DMCA Takedown Request.
Don’t even bother trying to fight a copyright or trademark infringement beef — you won’t win, because there is no real defense. Either you created it, acquired a license to use it (by paying for it or linking to a Creative Commons license), or you can’t use it. It’s really that simple. No receipt, no written permission, no link to a Creative Commons license, and you lose. The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. So just remove it, and apologize.
It’s pretty easy to avoid the four things besides copyright and trademark infringement that get social media users and bloggers sued, too. Trouble is, a lot of people don’t think they’re doing anything wrong, or that the rules don’t apply to them because what they’re doing is covered by First Amendment rights or journalist shield laws.
#2 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. 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, “Don’t eat at Deb’s Diner — the food will make you sick,” on the other hand is (likely) to be illegal. (There are exceptions, of course. For example, if you happen to be a health inspector acting in your official capacity and have proof to back you up, you can tell people not to eat there and state your opinion that there is cause to worry about getting sick if you do.)
#3 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 get negative stuff pulled from the web, even though they don’t have grounds for a winning case.
Rock star Courtney Love, a mommy blogger in Texas, and a homeowner in San Jose are among the people who lost high-profile product disparagement cases last year, each being ordered to pay damages to small business owners who felt that they were targeted by blog posts. Talk to your own legal counsel about this if you’re uncertain.
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 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, there are places in the world where defamation is a criminal charge, and defamation can be based on written statements (known as libel), spoken statements (called slander), and videos, graphics or photographs that cause damage to another’s reputation.
This is what gets a lot of social media users in trouble, and it’s what has blogger Nik Richie facing millions of dollars in potential payouts to plaintiffs. His site lets users post photos of people, with comments about the people and the situation. And a lot of those comments aren’t appropriate to repeat here — and a lot of the photos aren’t the sort that people would want spread all over the Internet. Richie, who just signed a book deal, was ordered to pay $1.5 million in damages to one plaintiff, and more lawsuits may be on the way.
One thing to remember here is that defamation is in the mind of the reader, and the outcome. Intent doesn’t 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 less employable, or suffers negative consequences, it can be defamatory. For example, a court in Nova Scotia yesterday 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.”
Also, although the legal definition includes the words “intentional” and “false”, don’t assume that the fact that you are telling the truth is an absolute defense. Words matter a lot. For example, saying, “I was unhappy with the work done on my car” may be quite different legally from saying “that (named business or individual or pejorative adjective) couldn’t fix a Tonka toy, let alone a real car.”
#5 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.
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 careful about how they promote themselves: 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 republish 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.
A word of caution about using photos you find on Flickr or PhotoBucket. 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. So think about the context in which you’re using the photo. 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).
Some sites now include a disclaimer with their photo credits on Creative Commons photos. Ask your attorney about this if you use a lot of these photos.