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Transcript of Presentation at ALI ABA Seminar: Blogging in the Workplace Introduction to and Overview of the Major...
Presentation at ALI ABA Seminar:Blogging in the Workplace
Introduction to and Overview of the Major Corporate Blog Legal Issues
Lawrence SavellCounselChadbourne & Parke LLPJanuary 30, [email protected](212) 408-5343
Copyright © 2008 Lawrence Savell
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Outline of Presentation Introduction Use of Disclaimers Affirmative Considerations Defamation Issues Limitations of Editorial Discretion Allowing Posts by Others Copyright Issues Trademark Issues Domain Name Issues Terms of Use Provisions Appropriation/Use of Name or Likeness Obscenity Issues Linking Issues Right to Refuse Advertising Violation of Advertising Laws Liability for Legal/Business/Professional Advice Other Issues/Considerations Conclusion
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Introduction
Blogs vs. other means of communication How are they the same? How do they differ?
Immediacy? More likely in defamation context to be construed as protected
“opinion”? More likely in copyright or trademark context to be construed as “fair
use”?
Traditional communications law principles Do they apply? In what manner? Are bloggers journalists?
Status affects applicability of both privileges and responsibilities
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Contexts
Client/business blogs How should you advise your client? How should you as a business set up and operate your blog?
What level of risk are you and/or your client willing to accept?
Podcasts Need to make sure that podcasts are "podsafe" -- that the
audio content offered does not infringe the rights of others (e.g., background music)
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Corporate Blogs
Benefit: A corporate blog can certainly help your company “get the word out” in an effective and efficient manner
But that valuable online presence may carry with it substantial legal risks
Increasing your sensitivity to potential claims can help reduce your company’s liability exposure I will be providing some guidelines.
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Corporate Blogs - Employees
Recognize the risks of employee blogging Companies are generally held responsible for actions
their employees perform within the scope of their employment
Employers should remind employee bloggers that corporate policies may apply to their blog postings These may include policies regarding:
Proprietary or confidential information of the business and its clients Applicable governmental requirements such as securities laws regarding
disclosures
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Affirmative Considerations
Most of presentation deals with reducing liability of corporation against claims by others relating to corporate blog
But there are obviously situations where it is the corporation that has been wronged Defamation by others of the corporation and/or its executives
If poster anonymous, some bring “John Doe” lawsuits seeking to have ISP or operator remove posting and/or identify poster
Posting of corporation’s trade secrets by others May seek an injunction requiring removal
May involve interplay between First Amendment rights of the others vs. property/reputation rights of the corporation
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Affirmative Considerations (cont’d) Anonymous speech has historically often been protected in
certain contexts to certain degrees under the First Amendment But defamatory speech basically has no First Amendment
protection (although developments like NYT v. Sullivan have increased proof required)
“John Doe” defamation/confidential information cases Plaintiff seeks order requiring ISP to turn over the identity and other
information it has on the defendants ISP moves to quash
Different courts apply different standards in determining whether and when to unmask anonymous online speakers Plaintiff-oriented: Some look at whether plaintiff had a “legitimate, good faith
basis” to allege cause of action against the defendants Defendant-oriented: Others examine whether plaintiffs defamation claims
could be successful (for example, ruling against plaintiff where statements were “opinion-centered” under “totality of the circumstances”)
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Affirmative Considerations (cont’d) Dendrite (NJ Super 2001): Specific procedure
Plaintiff must notify anonymous poster that poster is the subject of a subpoena or an application for an order to disclose identity so defendant will have a reasonable opportunity to fight such a subpoena
Plaintiff must identify the exact statements believed to be actionable Plaintiff must "produce sufficient evidence supporting each element of its
cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.“
Court must then balance the necessity of disclosure: Strength of the prima facie case presented by the plaintiff First Amendment right of the defendant to speak anonymously
Doe v. Cahill (Del. 2005): Modified Dendrite approach Plaintiff must notify the anonymous poster that poster is subject to
subpoena and must present a prima facie cause of action “[B]efore a defamation plaintiff can obtain the identity of an anonymous
defendant through the compulsory discovery process[,] he must support his defamation claim with facts sufficient to defeat a summary judgment motion.”
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Preview: Use of Disclaimers
You may be able to disclaim or deny liability to a degree through properly worded statements posted on your blog
Benefits Some greater level of comfort and protection
Limitations Not perfect protection
Practical considerations Turn off users Inhibit contributions you may want Crying wolf
Will close presentation with a review of language some have designed to address various issues
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Defamation Issues
Elements of a defamation claim Defamation Publication "Fault" Harm/injury
Privileges/defenses Truth Fair reports privilege Opinion/rhetorical hyperbole
Corrections/clarifications
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Defamation - What is a Defamatory Statement? False and defamatory statement about another which causes
injury to reputation (or in some cases causes emotional distress) Communication which exposes persons to hatred, ridicule, or
contempt, lowers them in the esteem of others, causes them to be shunned, or injures them in their business or calling
Classifications of libelous words Esteem or social standing (e.g., crime/immorality) Ridicule (more than simple joke or satire/exaggeration) Disease or mental illness (present time) Incompetence in trade, occupation, office, or profession
General professional competency – not a single instance of error Corporation's integrity, credit, or ability to carry on business
Including dishonesty or unethical behavior
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Defamation - Identification of Plaintiff Plaintiff must prove that statement referred to plaintiff --
was "of and concerning" plaintiff Need not be by name
Can be by description or circumstances tending to identify him or her
Defamation of a group or class One who publishes defamatory matter concerning a group
or class of persons is subject to liability to an individual member of it if, but only if: The group or class is so small that the matter can reasonably be
understood to refer to the member, or The circumstances of publication reasonably give rise to the conclusion
that there is particular reference to the member
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Defamation - “Publication”
Unprivileged dissemination to third party Circulation of statement in any form to at least one other
person Not an issue in blog context
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Defamation – “Fault” Responsibility at least at level of negligence Level that plaintiff must prove depends on status of
plaintiff New York Times v. Sullivan (1964) and progeny: Public officials
(later public figures) have to prove high standard of "actual malice“ "Actual malice" means that a libel is published with:
Knowledge of its falsity, or Reckless disregard of whether it is false or not
Private persons have easier standard (negligence) Have to prove that defamation published negligently or
without due care that average person of ordinary sensibilities would have used
Problem: Classification of public official/figure unclear
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Defamation – Truth
Truth is a complete defense “Substantial truth”/”gist” usually sufficient,
even if minor details off No liability if false aspects inconsequential
But it’s still a good idea to reduce risks by incorporating less-than-absolute words like “may” or “might” or terms like “alleged” or “reported”
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Defamation – Fair Reports Privilege
Protects fair and accurate reports of judicial, legislative or executive proceedings and records
Verify that particular proceeding/record included Official source must be identified Report must be "fair and accurate“
New York: substantial accuracy test Report should reflect entire record/proceeding
Denials of civil complaint should be summarized
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Defamation – “Opinion” Used to be the case that "opinion" was virtually completely protected from
being the basis for libel liability Traditional view: Abusive words arising in agitated, heated controversies
may be treated as statements of opinion or rhetorical hyperbole (exaggeration) and as such are not libelous
Scope of exception narrowed by recent court decisions May be protected if truly opinion and not capable of being proven either true
or false May be actionable to extent it implies a false assertion of fact Calling something an opinion does not make it so
Words like “I think” or “I believe” do not necessarily assure protection for what follows
If statement presents defamatory facts masked as opinion, there may be liability
If statement hints that there are unreported defamatory facts, there may be liability
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Defamation – Corrections If you determine that a defamatory statement was posted on your
blog, a prompt removal and correction or clarification should help reduce potential damages
Benefits Reduction in potential damages Provision of accurate information to your readers
If so, how should that technically be done? Ability to edit your prior posts Posting a separate notice
What about posts by others you have allowed?
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Limits of Editorial Discretion While editors certainly have and have traditionally
enjoyed the right to make reasonable edits, the bounds of editorial discretion are not limitless
In extreme cases, an editor and his or her publication may possibly be found liable for damages to an author Deletions of content Typographical errors Could possibly be basis for a claim of
Defamation Trademark infringement “Moral rights” (some countries recognize the right of a creator to have
his or her work attributed to the creator in the form in which it was created)
Address in blog terms of use Affirmatively specify broad power to edit/change item
May be safer just to delete post
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Should You Allow Posts/Comments By Others?
If you want to minimize legal liability, do not allow posts/comments by others Again, that can have practical upsides and downsides One of many examples of conflict/tradeoff between maximizing
legal protections vs. business/image considerations
Impact of § 230 of Communications Decency Act of 1996 Provides broad protection for providers and users of interactive
computer services against liability for defamation and other content-based claims when a third-party provides the information “No provider or user of an interactive computer service shall be treated
as the publisher or speaker of any information provided by another information content provider."
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Should You Allow Posts/Comments By Others? (cont’d)
Also permits providers and users of interactive computer services to exercise some editorial control while still avoiding legal liability
Immunizes them from liability for attempting to restrict access to objectionable material
No provider or user of an ICS shall be held liable for any action taken in good faith to restrict access to obscene material
Policies: Help industry flourish and encourage screening
However, some courts have stated that, at some point, such editing may transform the provider or user of the ICS into an information content provider and thus deprive them of § 230 immunity
Not clear where that point is
CDA preempts state law “No cause of action may be brought and no liability may be imposed under any
State or local law that is inconsistent with this section.” Recent example cases
Dimeo v. Max (3d. Cir. 2007): Affirmed dismissal of complaint regarding posting by third party on defendant’s website
Doe v. MySpace (W.D. Tx. 2007): Dismissed negligence and gross negligence claims, noting immunity not limited to defamation and defamation-related claims; covers assertions of liability for publication of, or harms flowing from dissemination of, third-party content
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Copyright Don’t use another party’s copyrighted material without permission
Be sure you incorporate only material that you own or that you have permission or the right to use
Exception: “Fair use” allows other parties besides the copyright owner to use copyrighted material in a reasonable manner without the owner’s consent in certain circumstances Balance of Interests
The purpose and character of the use The nature of the copyrighted work The proportion that was "taken," and The economic impact of the taking (the extent to which the use may diminish the
value of the original work) Purpose/character examples
Education Parody Criticism Commentary News reporting
But you should credit the author
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Copyright - Who Owns The Rights to The Content?
Take care when drafting contracts with outside providers of corporate blog content
If you use an outside person or entity to create content for your blog, be sure your agreement with that provider gives you the rights you need
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Copyright - Who Owns The Rights to The Content? (cont’d) Created by you Joint creators (joint ownership) Created by another for you
Employee Under the Copyright Act, if a work is created by an employee within the
scope of his or her employment, the employer automatically owns all rights in the work
In such circumstances, no specific grant of rights is necessary
Freelancer Structure the arrangement with the author as a "work made for hire"
under the Copyright Act (express agreement between the parties; copyright belongs to party commissioning the work), or
Have an agreement with the freelance writer which specifically grants "all rights" to you
Submissions by unrelated third parties You probably have a license
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Digital Millennium Copyright Act (1998) As noted earlier, beware of allowing posts or comments
by third parties These can present significant risks that can be avoided
by simply not allowing them Your business model may encourage third-party
contributions to your corporate blog, however In that case, notify posters that they are representing that they
have the right to post the content in exchange for your giving them the opportunity to post
This may reduce your liability somewhat, but if a poster plagiarizes material, you may still be found responsible if the true owner sues
The Digital Millennium Copyright Act may provide some insulation if applicable and if you remove infringing content once alerted
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Digital Millennium Copyright Act (1998) (cont’d) The DMCA contains a provision entitled the Online Copyright Infringement
Liability Limitation Act (section 512), which provides a “safe harbor” to ISPs from claims of copyright infringement that result from the conduct of their customers In order to obtain immunity, an ISP (operator) must first satisfy two
threshold requirements; it must (1) "[adopt] and reasonably [implement] ... a policy that provides for the
termination in appropriate circumstances of [users] ... who are repeat infringers“ and
(2) "accommodate[] and ... not interfere with standard technical measures" that copyright holders rely on in protecting their works online
Blog/website operators Once it receives a notice of copyright infringement, it must:
(1) act expeditiously to remove, or disable access to the allegedly infringing materials (2) notify the alleged infringer that the material has been removed (3) forward any counter-notices from the alleged infringer to the complainant, and (4) replace the allegedly infringing material if the complainant has not filed a lawsuit within
ten to fourteen days after the operator has received the counter-notice
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Trademark
Be careful when using the trademarks of others Make sure that you have permission to use any other
individual’s or company’s brand names or trademarks that you display
Trademark issues can also include the registration of domain names that allegedly infringe on existing trademarks and the use of trademarks of others in metatags An example of the latter: Company A inserts the trademarked
name of Company B in Company A’s metatags This is a no-no because it might confuse people who are looking for
Company B’s blog but are directed by a search engine to Company A’s blog
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Trademark Issues
Context Name of blog Use of trademarks in blog Affirmatively asserting the blog’s trademark
Litigation A plaintiff has to prove two things in a trademark
infringement case Its mark is entitled to protection, and More importantly, that the defendant's use of its mark will
likely cause consumers to confuse it with the plaintiff's mark
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Trademark - Likelihood of Confusion
Factors to consider The "strength" of the plaintiff's mark The degree of similarity between the marks Whether the products compete The likelihood that the plaintiff may enter the defendant's
market The sophistication of consumers The quality of the defendant's product The existence of actual confusion, and The defendant's "bad faith" in adopting the mark
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Trademark - Suggestions Register your blog’s name and possibly also a variety of similar
names as domain names to protect yourself from others who may try to divert traffic from your blog
Search the Internet on a regular basis for illegal uses of your domain name, brand name, trademark or similar names on a regular basis
If you find others using your name or trademark, determine whether the other uses are legitimate, and if they are not, contact such users, tell them it is yours, and ask them to stop using it
Make sure that you have permission to use any other individual’s or company’s brand names or trademarks that you display on your site
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Privacy
Watch out for potential invasions of privacy Statements that invade the privacy of others can provide the
basis for a legal claim
Privacy Statements With increasing federal and state legislation regarding Internet
privacy, many bloggers post (and many readers expect to see) privacy statements promising to protect the confidentiality of personal information that may be provided or collected, such as that transmitted in the course of blog registration/log-in by those seeking to post comments
Blog hosts must comply with their own established policies
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Appropriation/Use of Name or Likeness
New York Civil Rights Law §§ 50-51 Article, 48 Albany Law Review 1-47 (1983)
Appropriation Use of name, portrait, or picture For advertising or trade purposes Without prior written consent
Defenses Newsworthy exception
Used to illustrate matter of public interest with which it is reasonably related
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Obscenity Issues
Could come up in context of discussion of facts of a case, either in text or if include graphics/illustrations
Bear in mind global audience Standards vary
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Linking Issues
Be careful about providing external links Accompany them with a notice disclaiming responsibility
for and denying any endorsement of products, services or information contained on outside sites
Liability for linking? “Bad” content at blog/site to which you link “Deep” linking (bypassing design/organization of blog/site to
which you link – which often means advertising) Recent case: BidZirk LLC v. Smith (D.S.C. 10/22/07): Mere act
of linking to a photo on another’s publicly-accessible website is not a misappropriation (plaintiff had consented to the other’s posting)
Liability for not linking?
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Right to Refuse Advertising General rule: publishers have long had leeway in
refusing to publish advertisements (courts may vary on how much leeway)
May need to do that to avoid potential liability for running certain ads (for example, ads for illegal activity) If publisher knew that advertisement was fraudulent, deceptive,
or misleading, publisher may possibly be held responsible for the ad along with the person or company who placed it
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Right to Refuse Advertising (cont’d)
Allegations made by plaintiffs (usually unsuccessfully) in favor of requiring publication: First Amendment rights
Advertising as protected speech (strongest in political context)
Refusal to run seen as denial of free speech and expression
"Restraint of trade"
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Right to Refuse Advertising (cont’d)
Exceptions to freedom to reject: Motive or effect is anticompetitive
Publisher refused ads in some sort of anticompetitive scheme to injure another business
Rare and hard to prove Publisher has agreed to run an ad then refuses in
breach of that contract Publications of non-private or governmental entities
may have less leeway to refuse advertising
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Violation of Advertising Laws
Keep applicable advertising laws and regulations in mind Certain blogs may be viewed in whole or part as
advertisements Example: the blog of a business that pointedly extols
the quality of its staff and services to potential customers and clients
If so, blog operator must comply with applicable advertising, consumer protection, deceptive practice and unfair-competition laws and regulations.
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Liability for Legal/Business/Professional Advice "One who, in the course of business, profession or employment,
or in any other transaction in which he has a pecuniary [financial] interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information."
"[This] liability . . . is limited to loss suffered: "(a) by the person or one of a limited group of persons for
whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it, and
"(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction"
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Other Issues/Considerations Claims
Intentional infliction of emotional distress Tortious interference with contractual/business relations
A plaintiff may claim that statements have wrongfully interfered with the plaintiff's contractual or business relations with another, causing the plaintiff harm (often asserted along with defamation claim)
Product liability claims against publishers Check your insurance coverage
Determine whether these types of blogging risks are covered If they’re not, consider obtaining additional coverage such as
third-party media liability coverage for infringement and liability costs associated with Internet publishing
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Types of Blog Disclaimer/Terms of Use Language
Parameters of use/requirement of compliance Set forth the conditions of use and require acceptance of the
terms “We grant you a nonexclusive, nontransferable, limited right to
access, use and display the blog and the materials provided hereon, provided that you comply fully with these Terms and Conditions of Use.”
Postings may not be current: “The information on the blog may be changed without notice
and is not guaranteed to be complete, correct or up-to-date.”
Distinguish company from individual posters: “The opinions expressed on the blog are the opinions of the
individual author and may not reflect the opinions of the company.”
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Types of Blog Disclaimer/Terms of Use Language (cont’d)
External links: “Links to external sources are provided solely as a courtesy to
our blog visitors.” “We have no control over the linked sites or the materials,
information, goods or services available or contained on these linked sites.”
“We are not responsible for and do not endorse or warrant in any way any materials, information, goods or services available through such linked sites or any privacy or other practices of such sites.”
“If you decide to access any of the linked sites, you do so entirely at your own risk.”
“We reserve the right to terminate any link at any time.”
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Types of Blog Disclaimer/Terms of Use Language (cont’d)
Other matters addressed in such statements Use of blog’s e-mail/messaging system does not constitute
giving legal notice to the company Reservation of right to revise terms and conditions Prohibition against certain activities by users Protection of blog’s IP (copyright/trademark)
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Caveat: RSS Feeds (Syndication/Aggregation)
Helpful for reader (need not visit multiple blogs) but may have legal implications for you
Appearance may change from way you set up your blog Depending on how they were created, not all of what you have
created in terms of notices, etc. may necessarily transfer
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Need for Legal Counsel
The potential liability for a corporate blog largely depends on the details of the circumstances
To get the full picture, preventive legal review or monitoring by in-house or external counsel with expertise in these areas is critical
Lawyers should educate and update involved personnel on pertinent legal issues
Clients should consult counsel on questions about contemplated blog content
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Conclusion
Understand traditional analysis Be aware of risks Use common sense Use those disclaimers If not a lawyer, consider legal review Sensitizing yourself and/or your company to the major
legal issues and taking steps to deal with them in advance can help reduce the risks of legal liability for corporate blogs An ounce of prevention can save you a lot of headaches and
expense down the road