How to blog on the right side of the law

1/Unlike in the US, freedom of expression in the UK is not enshrined in law, so bloggers do not have the legal right to say whatever they like. Bloggers can lose their jobs for posting about their employer, clients or colleagues, even if real names were deleted or substituted in the post. Put simply; if there’s a chance that readers can interpret who you are blogging about then stop and delete the entry immediately. As a blogger on work, even posting a picture of yourself could cause trouble, as it has been successfully argued that the employer/client could be identified by anyone who identified the employee/freelancer from the image.

2/Under UK law, bloggers do not have the right to remain anonymous and are treated the same as professional journalists or publishers. As a result, bloggers must take care with anything they write about a person or company in an accusatory way.

To defame someone means: "To lower the estimation of a person in the eyes of right thinking members of society generally. Even if the words damage a person in the eyes of a section of society or the community, they are not defamatory unless they amount to a disparagement of the reputation in the eyes of right-thinking people generally.”

Alongside defamation, the other areas of liability for bloggers are breach of copyright, trade mark infringement, disclosure of confidential details, and types of expression (which are criminalised, like inciting racist violence).

3/The other main areas of potential liability if you upload content to your own website are:

Contempt of Court - talking too much about an ongoing trial

Terrorism Act 2006 - inciting, encouraging or supporting terrorism

Racial and Religious Hatred Act 2006 - inciting racial hatred

Blasphemy – an age-old crime that hasn’t seen a prosecution in thirty years. However its meaning was recently updated by a judge’s ruling that for something to be blasphemous it must be 'so offensive in manner that it undermines society generally.'

4/Defamation is probably the most obvious pitfall for bloggers. One of the main defences against a defamation charge is ‘justification’ - that what was said was true. Under the law, it's up to the accused to prove what was said was true, not for the accuser to prove that it was false. If not, another defence against is ‘qualified privilege’, as spelt out by the House of Lords in the case of Dow Jones v Jameel. Under the ruling, journalists can make newsworthy allegations, which later emerge as false, as long as their reporting was in the public interest and was undertaken in serious and responsible manner.

5/If a reader takes issue with content you have uploaded to your website, the first you are likely to hear of it is via a letter or e-mail requesting that the content be amended or deleted. Theoretically, bloggers must comply with laws all over the world, but the land where your content is consumed is the most important. Putting a ‘terms of use’ notice spelling out ‘if you read this blog you agree to be bound by the law of… (your home country)’ can help. Some controversial bloggers, particularly those expecting challenges to their content, wisely let readers know how their site deals with complaints about its content being unlawful, typically in a section entitled ‘Notice and Take Down Policy.’ Legal challenges to content for those who run a blog or website could come from anywhere; just because your server is in Dubai doesn’t mean you can’t be sued by someone in the US.

6/For freelancers, who often populate their web-pages with links, a likely legal challenge stems from the popular process of ‘making available.’ Under copyright law, bloggers can face action for simply linking to a site that infringes someone else’s copyright.

7/Using a company logo in a blog post can cause problems, even if permission has been granted by the company, or the logo was taken from an ‘Images available for use’ section. Typically, trouble ensues if the company dislikes the content their logo is posted with, and may lead to accusations of dilution of their brand, or unlawful usage of a trademark.

8/ Republishing a libel is the same as publishing it in the UK, unlike in the US. However if you are publishing content penned by another author, give due acknowledgement, and clearly label your content separately to other people’s.

9/Context, like content, is king both on and offline. Manipulating the context can make a statement defamatory which otherwise wouldn’t be, with defamation even possible by innuendo.

10/ Don’t assume that not having pennies in your purse will persuade people to leave you alone for defamation. Case law shows that companies will take action solely to protect their reputations and stop others from soiling them.

FreelanceUK’s tips are based on a talk by Robert Lands, a partner at Finers Stephens Innocent who specialises in IP and Media Law. These tips are only intended as guidance, and should not be acted on without seeking professional legal advice.

 


Aug 27, 2008
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