Copyright

Most of the material on the Internet—text, images, audio files, videos— is owned under copyright law by the people or the corporations who created it. Our advice on copying material from other websites and using it on your blog can be summed up in one word: don’t.

U.S. law on copyright-protected material is simple: The reproduction and dissemination of copyright-protected material by anyone other than the copyright holder without the agreement of the copyright owner is illegal.

This does not mean that if you download and use an Associated Press photograph on your blog, the police will kick down your front door and slap you in handcuffs. Violation of copyright laws are generally not a criminal offense. But it does mean that the Associated Press can sue you and ask the court to order you to pay it a large sum of money, although in most cases the first action of the copyright owner will be to contact the blogger and demand the copyrighted material be removed from the blog.

You say you’ve seen other bloggers post copyright-protected material on their blogs and get away with it? No doubt you have. That doesn’t make it legal or ethical. It just means they didn’t get caught.

There is an exception to copyright law, known as “fair use,” that allows you to use a limited amount of material without permission from the copyright owner. For example, if you are writing a blog post that is a book review, you can quote passages from the book to demonstrate to the reader points you are making. How much can you quote? There is no hard and fast rule. The website of the U.S. Copyright Office states: “The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.” A good rule of thumb is “not too much.”

Be aware that the copyright restrictions on music and song lyrics are stringent, and that recording and music publishing companies are among the most zealous of copyright owners in taking violators to court.

The biggest (and best) place on the web to find images and other multimedia for use on a blog is Creative Commons, which is at creativecommons.org. Creative Commons, a nonprofit organization, offers free copyright licenses to a variety of works.

Now for the good news: copyright law works both ways. You own the copyright to everything you create, write, and post on your blog. In the US, copyright is an automatic right. Anything you create that is fixed in a tangible form of expression is your property. You don’t need to register with the government and there are no forms to fill out; if you create it, you own it.

You may, perhaps in exchange for money or something else of value, transfer the copyright (in writing) to another party. If another blogger or website uses what you have created, your work has been stolen and your copyright has been infringed. If you don’t want to pay a lawyer and sue the offending blog, contact the blog that has stolen your material and ask that it be taken down. Most bloggers will comply.

Libel

Libel is the act of publishing a false statement that damages the reputation of and defames an identifiable individual. Bloggers can be— and have been—sued for libel.

People who are “public figures” in the eyes of the court (elected officials, for example) must not only prove that the published material is defamatory, they must also prove that the material was published with “actual malice,” meaning that the writer knew the statement was false or published it with a “reckless disregard” for the truth.

A “private figure,” someone who has not sought the public spotlight (a neighbor, a classmate, a check-out clerk at the supermarket), needs only to prove falsity and negligence. The standard courts use is whether a “reasonable person” would have published the material.

If a published statement is true and can be proven true, it is libel-proof. Truth is an absolute defense to a libel claim, although, as the Electronic Frontier Foundation points out, “the truth may be difficult and expensive to prove.”

The publication of opinion (a review, for example) is also protected from libel charges, but what is and what is not an opinion can be a tricky thing to decide. The courts look at the context of the statement to determine whether it is an opinion or statement of fact.

Under U.S. law, bloggers cannot be held liable for defamatory statements posted by commenters to a blog. But bloggers may be held legally liable if a commenter’s statements violate federal law or infringe copyright.

One final thing to remember about libel: to repeat a libel is to commit libel. If another blogger defames someone and you repeat that statement on your blog, you are liable to a defamation claim. So far, U.S. courts have ruled that linking to a website containing a libel is not an actionable offense.

First Amendment Protections

Although the body of law on this issue is still emerging, most U.S. courts have ruled that bloggers are as entitled to the same freedom of the press protections as other news media.

To date, the most important case on the matter was decided in January 2014 by the U.S. 9th Circuit Court of Appeals. In the case, known as Obsidian Finance Group, LLC v. Cox, a blogger named Crystal Cox was sued by Obsidian Finance Group after she used her blog to accuse the company and its principals of illegal activities, including fraud and money laundering.

In 2011, an Oregon jury found against Cox and awarded Obsidian Finance Group and its attorney $2.5 million. Cox appealed the decision, and the appeals court overturned the lower court’s decision.

“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story,” the Circuit Court of Appeals decision states. “In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones.”

In its decision, the appeals court cited a statement from the 2010 U.S. Supreme Court decision in the Citizens United v. Federal Election Commission case: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

Student Blogs

In addition to the Electronic Frontier Foundation’s “Legal Guide for Bloggers” (see above), the Washington, DC-based Student Press Law Center (www.splc.org) provides a useful guide to media law for students.

In determining the First Amendment rights of students in the US, the courts have made a series of distinctions: between public and private schools, between high schools and colleges, and, perhaps most important, between school-supported publications and independent, off-campus publications.

Public high schools have been granted permission by the Supreme Court, in the 1988 Hazelwood School District v. Kuhlmeier decision, to censor the content of school-sponsored publications (including online publications). The justices wrote: “A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”

Courts have determined that the Hazelwood decision applies only to public high schools and not to colleges. Publications created by public college students essentially enjoy the same First Amendment protections as professional publications. The exceptions are if content in a college publication “materially disrupts classwork or involves substantial disorder or invades the rights of others.”

American courts have also made a distinction between high school-sponsored publications and “public forums for student expression,” and they exempt these “public forums” from the Hazelwood standards. A public forum is defined, according to the Electronic Frontier Foundation, as “one where the student bloggers, not school administrators, have the authority to determine the content.” The EFF advises: “Whether a school-hosted blog would be considered a public forum, and therefore not subject to Hazelwood censorship, is deter mined on a case-by-case basis, looking at the school’s policies and statements. If your school has an Internet Policy or Terms of Use for its site-hosting services, look it over carefully to see if the school has a right to edit or censor content.”

Because public high schools and universities are run by government employees and private schools are not, private school students do not enjoy the same First Amendment protections as students in public schools. Many private high schools and colleges have adopted their own free press policies. It is wise to advise student bloggers to find out whether their schools have such policies and what rights the policies grant.

Independent, off-campus blogs—even if they write about the schools the bloggers attend—enjoy strong First Amendment protections, especially if the blogs are not hosted on the school’s network. We advise student bloggers who may be planning to write controversial material about their schools not to use the schools’ blogging software or network; find an off-campus website to host your blog.

This area of the law is still evolving. Some courts have held that off-campus blogs written by high school students can be held to school restrictions. Other courts have ruled in favor of the students.

Students at private high schools have been punished by their schools for what they wrote on their personal, off-campus blogs. One student at a private high school in New York State was expelled by school officials because of a post on his personal blog, and a court upheld the expulsion simply because he attended a private, and not public, school.

Private colleges have much more leeway to regulate and punish students for what they write and post. The state of California has a law on its books that requires all nonreligious private colleges and universities to extend to their students the same First Amendment protections students at public colleges have. No other states have a similar law.

Don’t Steal or Copy

Plagiarism doesn’t just mean stealing someone’s exact words. It can mean stealing that person’s research without attribution or a link to his or her work. It can mean stealing someone else’s ideas and passing them off as your own. Once again, let’s do ethics: How would you feel if you had written a blog arguing that the Boston Red Sox should bunt more often based on an analysis of the last three season’s attempts and then read the same blog, written with slightly different language but the same data, that in no way credited your analysis or linked to your earlier efforts? We bet you’d be both mad and hurt. So why shouldn’t someone else feel that way if you did it to them?

Don’t Spread Rumor; Do Verify

Good bloggers have rich voices and strong opinions. That’s great. But the most interesting opinions are based on facts, not assumptions or, worse yet, rumors that just might prove false. The 24/7 world of social media has led to egregious errors that spread like a prairie fire. At minimum, give a source for the information you are sharing. Better yet, verify the material yourself.

The current shoot-from-the-hip attitude toward information was evident a few years back when the Poynter Institute in St. Petersburg told the story of a California Watch senior editor who overheard the cellphone conversation of a woman he was quite sure was a Santa Ana city council member and started tweeting what she was saying. He never identified himself to her. He didn’t ask her for a comment. Nor did he bother to verify that she was the person he thought she was. Instead, Poynter wrote in an article headlined “Editor overhears councilwoman’s phone conversation, tweets about it,” he told his Twitter audience that he was “99 percent sure it was Michele Martinez [the councilwoman].”

Let’s do some more ethics. Would you like to have your conversations tweeted around the world without being asked for an explanation of what you said or being given the chance to identify yourself? We rather doubt it.

NPR’s new media handbook tells its staff: “Conduct yourself online just as you would in any other public circumstances … Verify information before passing it on.”

We agree.

Don’t Be a Paid Mouthpiece; But If You Must Be, at Least ’Fess Up

One of blogging’s biggest challenges is to take it beyond a hobby. But to make money, some bloggers resort to being shills—a derogatory term used for generations in journalism to describe those who shamelessly wrote about products or people for pay.

We’re former journalists so, no, we don’t believe it’s OK for you to write about Magnificent Mountain Resorts in your blog when you’re on the resort’s payroll. But if you must, at least make clear that you are telling about the virtues of the resort because the resort either pays you to or bought an ad on your site.

Journalists, particularly those covering fashion, cars, and other fun things, can be accused of their own share of ethical foibles, as David Weddle wrote a decade ago in a stunning Los Angeles Times magazine article titled “Swagland” on the topic of free gifts—known as “swag” —given to journalists. “You might call it a state of mind, a wondrous alternate universe concocted by publicists,” Weddle wrote, “funded by corporations eager for media coverage of their wares and frequented by journalists who have cast off concerns about conflicts of interest and embraced a new creed of conspicuous consumption.”

Journalists are paid. Most bloggers are not. But that doesn’t give bloggers license to hide payments from their readers or make money through deceit. Again, at the very least, be honest with your audience.

Why?

The bottom line: if you’re writing about Aunt Bertha’s big bagels shop or cousin Bobby’s candidacy for the city council, you are in conflict of interest, whether you’re being paid or not. The least you can do is disclose your relationship. Better yet, pick a different topic altogether. Even if you believe you can write objectively about things you have a financial or other stake in, the perception of your readers just might be that you can’t. Hiding the connection can only make matters worse.

Practice Good Blogging Etiquette

In some ways, ethics starts with the Golden Rule: “Do unto others as you would that they should do unto you.”

This can be applied in a variety of ways in blogging. For starters, it makes sense if you plan to write about someone by name to identify yourself and let them know your plans before you start an interview. No one likes to be burned by a sneak. Reporters are expected to tell people that they’re reporting before they start interviewing people. Bloggers should do the same.

The courtesy of disclosure can be applied in other ways in the blogosphere. If you plan, for example, to reprint someone’s work in its entirety on your blog, be good enough to ask permission or, at the very least, to let that individual know. And, of course, use the byline of the person’s work you are reprinting.

We could certainly go on; whole libraries of books have been written on ethics. But this appendix, alas, has only the space to whet your appetite for this really important subject.

So we’ll leave you with a single last tip. In Steele’s “10 questions for ethical decision making,” he suggests this final question before pushing the publish button: “Can I clearly and fully justify my thinking?”

Again, ethics is a thought process, not an emotional gut reaction. Then he expands on that question about justification. To paraphrase, ask yourself, “Can I clearly and fully justify my thinking to other bloggers? To the people I’m writing about or have interviewed? To my public?”

By pausing to reflect and to both challenge and stretch your reasoning, you’ll likely settle on an approach that serves both your readers and the truth.