Blogging and the Law: Part 1 of 2

How to Protect Yourself

As the recent controversy over NickMom’s “re-purposing” of other parenting bloggers’ content has made clear, the legal aspects of blogging can be pretty confusing, even for large national brands that presumably ought to have easy access to legal advice. For smaller bloggers—and particularly those giving advice of some kind or another through finance blogs—making certain that both you and your content is protected under the law can be very daunting indeed.

While the law is always slow to catch up to changes in technology, that does not mean that there aren’t laws that cover what we do online. Here is a basic primer on what you need to do to make certain you are not on the wrong side of the law:

1. Advice. You may have read about the Steve Cooksey, the nutrition blogger from North Carolina who apparently broke the law by giving nutrition advice online without a license. Cooksey’s blog is set up in a Dear Abby style, so that readers write in with problems and he advises them. He also offers lifestyle coaching for fee through his site. Nutrition blogs and finance blogs are similar in that they both work to help educate readers in how to live a healthier life. While few financial writers in the blogosphere offer these types of posts or services, Cooksey’s story does still have a great deal to tell us about what is legal on our sites.

The first thing to remember is that there is a difference between advising and educating. The former is telling a specific individual what to do—or telling many what to do in a specific situation. The latter is much more clearly legal, as it simply provides the information to readers and allows them to come to their own conclusions.

To make it clear that your blog is about education, present your facts neutrally, always include your source information, and make it clear when you are expressing an opinion. For example, you might say “Peer-to-peer lending has be known to show up to a 10% ROI.” This is a fact, and has been reported by Forbes. No matter how much you might believe in peer-to-peer lending, you don’t want to say: “Put all your investments in peer-to-peer lending because it’s an absolute sure return of 10%.” If you want to show just how much you believe in peer-to-peer lending, then you will have to make it clear that it is your opinion: “In my opinion, you can’t find a better return for you money.”

But you also have to make it clear somewhere on your site just what your opinion is worth. Many of us in the financial blogosphere got interested in money in our private lives and do not necessarily have any education or training in the subject. Including a disclaimer on your site that you are not a financial professional and that your blog is for informational purposes only will go a long way to keep you from ending up like Steve Cooksey.

2. Copyright. A copyright holder has the exclusive right to reproduce their work, be it an image, a photograph, or text. Protecting copyright holders was fairly straightforward before the invention of the internet. But with the simplicity Google image search and the fact that even toddlers can easily copy and paste images and text, copyright infringement is a fact of life online.

But just because it happens does NOT mean that you should do it. The two basic ways to ensure you are not infringing on copyright is to request (and receive!) permission prior to using the copyrighted material, or by only using material that is under the Creative Commons license. Materials under Creative Commons licensing are free to use, provided you follow the attribution requirements. Wikimedia Commons is one of the largest sites offering Creative Commons images.

Fair use is an exception to copyright infringement laws, and it is often very misunderstood. In general, fair use must be in some way transformative (you are changing the material in some way) and not just reproductive. According to Jennine Jacob of Independent Fashion Bloggers, using copyrighted material in the following ways will generally be considered transformative fair use rather than copyright infringement: “criticism, comment, news reporting; teaching; scholarship or research; parody.”

Fair use is not a black-and-white issue, however, so it is always in your best interest to get permission to use any copyrighted material.

3. Giveaways. These are a popular way to grow readership and encourage reader engagement, but they can put you on the wrong side of the law. (Sara, of Saving for Someday has a long explanation of what you can and cannot do with giveaways. If giveaways are a regular part of your blogging, I highly suggest you read through her entire post.)

Basically, giveaways can only be legal if they are either a sweepstakes or a contest, while lotteries are illegal. In a sweepstakes, the winner is chosen randomly and it is entirely free for the participants to enter. A contest means that the winner will be chosen based upon some sort of merit—like the best essay or picture entered. A blogger offering either of these types of giveaways is working (for the most part) within the law.

Lotteries, however, are definitively illegal for bloggers, as all lotteries are highly regulated. Something is defined as a lottery if the prize is given away randomly and if participants must pay in some way, either money or something else of value, in order to enter. Bloggers can get into an iffy area with a sweepstakes if they require a “follow” or navigation to another site for participants to enter. Those requirements for entry could be considered “payment” since followers and clickthroughs are valuable. In that case your sweepstakes could be construed as a lottery.

The Bottom Line

A court of law is not going to be sympathetic to the “I just didn’t know” defense. It’s on us to know what is and is not legal on our blogs and to make sure we always stay on the sunny side of the law.

Next week, I’ll look at what the law says about protecting your content.