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Blogs and the Law: Things to Consider

| Feb 22, 2003 | IP and Technology

Advances in Internet technology have spawned a litany of self-published authors, most of them appearing in the blogosphere.  A blog (short for “weblog,” a web-based log) is a media platform, typically hosted on a website, where an individual may post writings, pictures, videos, music, and other content.  Using blogs, ordinary individuals are able to quickly and easily communicate with the rest of the world.

Blogs are often fairly simple in design, focused on quick delivery of content related to a particular topic or subject, and typically devoid of the interactivity that characterizes mainstream and commercial websites.  Blogs often contain author-published, unfiltered content, with little to no pre-publication editing.  The content on blogs usually consists of personal opinion, commentary, and criticism, and sometimes even live reporting, similar to mainstream media but often with a level of variety, creativity, and spontaneity which mainstream media cannot match.  In a way, a blog is much like an e-mail which anyone can read the moment is it sent.  For those accustomed to writing, blogging will likely be a very natural way of communicating, allowing one to communicate their thoughts to the world as quickly as those thoughts can be typed.

It should not come as a surprise that blogs on legal topics abound.  A simple search for law-related blogs turns up thousands of hits, from blogs run by mainstream publishers like the Wall Street Journal to blogs by individuals, on topics like copyright law, sports law, immigration law, and thousands of others.  Some of those blogs exist to provide critical analysis or commentary about recent legislation while others exist to provide a resource featuring summaries of state law and recent cases.  There are many attorneys who maintain blogs on behalf of themselves or their firms, and it is likely that if you have an interest in a topic, someone is blogging about it.

Blogging is not without its pitfalls, as blogs can create legal issues both for attorneys and their clients.  Here are a few legal issues to keep in mind if you or your clients are interested in blogging:

Copyright Law: Much of the content posted to a blog is copyrightable.  For all original content created by the author (such as a poem or critique), under U.S. copyright law, the author holds copyright in the work, barring an agreement to the contrary.  Therefore, a blogger’s original content is protected under copyright law and the blogger may protect the content.  If, on the other hand, content was obtained from a third-party source, then the user of such content should ensure that its use is with permission (i.e., under license).  Re-use of another’s content, even when attribution is given to the original source, may constitute copyright infringement and could subject the user to liability.

Defamation/Privacy: Because a blog is such an easy way to quickly publish written opinion, and because it is typically done in an unedited, unfiltered manner, there have been a number of cases where blogs have caused their authors to be subject to defamation or invasion of privacy claims.  The anonymity afforded by the Internet makes it potentially difficult for plaintiffs to identify an alleged defamer, with some courts even siding with the anonymous blogger in dismissing claims against them.  Other cases in which employees are critical of their employers can create potential liability for both the employee (in the case of a breach of an employment agreement, for example) as well as the employer (for defamation, wrongful termination, etc.).

Trade Secrets: The ease with which blogs can be established and used to publish information also make them great vehicles for quickly disseminating potentially harmful content.  Cases relating to misappropriation of trade secrets and confidential information take on greater significance when an employee can publish company secrets on a blog, making them instantly available to everyone (including competitors).  Employers who are using blogs to promote or provide more information about themselves should ensure that guidelines are established and enforced with respect to posting on those blogs.  Companies should also ensure that their employees understand what information may and may not be made public and know whether they are authorized to speak on behalf of the employer.  Employment agreements, confidentiality agreements, and/or employment policies should be used to help deter and protect against such activity.

First Amendment: Legal issues which were in controversy during the formative years of the Internet relating to use and misappropriation of third-party content and linking to third-party websites are now being given another look due to the ease with which existing content can be reposted to a blog.  However, unlike a website which exists for a commercial purpose, blog use is often not commercial and therefore the writings which appear on the site may be considered to be protected expression under the First Amendment, depending on the facts and circumstances of the case.

Attorney Conduct: Attorneys who maintain their own blogs should be aware that those blogs may contain legal advice and/or may constitute advertising under the Maryland Rules of Professional Conduct, and therefore the blogs should contain the appropriate notices and disclaimers.  Because blogs are often hosted on or exist as part of a website, attorneys should consider creating terms of use which would be useful in setting forth the acceptable parameters governing use of the site.  Such terms of use can also govern the re-use or re-publication of blog content, and can include copyright notices and other legal notices.

This article appeared in the March 2009 issue of the Maryland Bar Bulletin, a publication of the Maryland State Bar Association.