Twenty-five years ago, there was no reason for most people to know much about mass media law. Unless you worked in television, print journalism, radio or some other mass media, you had little reason study the laws that governed them.
However, with the Web, everyone is a publisher. Suddenly, the obscure and arcane areas of law that only impacted radio DJs and news reporters now applies to everyone who runs a blog, posts to a forum or even just uses social networking.
Simply put, everyone now has an audience, no matter how big or small, and with that audience comes responsibilities, both legal and ethical.
But, if you’re a blogger wanting to ensure that you avoid legal trouble, there’s a lot of legal ground to cover. But if you’re looking for a place to start, here are the five areas of law you may want to hit the books on today, and the five areas I’ll be covering in more detail moving forward on this site.
1. Copyright
The Web has made everyone aware of copyright law and the complexities/challenges inherent with the law. However, there’s a lot of confusion still present as to what copyright protects, how it protects it and what exactly is copyright infringing.
Copyright protects works of creative authorship such as literary works, photographs, paintings, music and movies. Anything with a requisite level of creativity that’s fixed into some tangible medium of expression, including a computer’s hard drive, is protected.
Copyright, by default, goes to the person who created it or, if the person is an employee, the company that employs him. That person or company, the copyright holder, is given a set of exclusive rights over that work and anyone who violates those rights without permission commits copyright infringement (with some exceptions).
Obviously, we’ll be talking a lot about copyright moving forward but, in the meantime, here’s a primer from the U.S. Copyright Office (PDF) about the basics of copyright law to get you started.
2. Trademark
Trademark is often confused with copyright as they are both areas of intellectual property. However, they are actually fundamentally different and protect different things in different ways.
Trademark is designed to protect marks used in conjunction with a business such as the names of business, slogans, logos, product names, etc. and it’s designed to protect them from confusion in the marketplace.
This means that, unlike with a copyright, a trademark holder can’t block every (or nearly every) use of the mark. It’s not legal to start up a new blog called “TechCrunch 2” but it’s perfectly legal to mention TechCrunch in a post because the former is potentially confusing to visitors where the latter is not.
Obviously, it’s much more complicated than that and the U.S. Patent and Trademark office has a great primer to get you started.
3. Privacy/Trade Secret Law
Though privacy and trade secret are actually two very different areas of law with different sets of rules, they function to do much the same thing, to provide legal barriers for making confidential information public.
One of the challenges of privacy law is that it’s considered an emerging right and much of the law is largely handled on a state level in the U.S. This means that there are potentially 50 interpretations of how a situation would play out in a court of law.
Trade secret law, on the other hand, is Federal and governed under the Uniform Trade Secrets Act. There a trade secret is defined as anything that is not generally known to the public and gives a company an economic advantage over competitors or customers. Disclosing such facts, especially if obtained through “improper means” can lead to a lawsuit.
For those interested in learning more about privacy law, here’s a good primer to get you started and here’s a similar one for trade secret.
4. Defamation
Defamation, sometimes better known as “Libel” and “Slander”, which in truth are two types of defamation, deals with the dissemination of false statements about a person that has the ability to harm their reputation.
Slander is generally associated with spoken defamation where Libel typically deals with written and published defamation. However, since the separation hinges on whether the defamation is fixed, even things like YouTube video likely qualify for libel status.
To prove that a statement was defamatory, a potential plaintiff has to prove that the statement was published (meaning that it reached a third party), false, injurious (meaning that it hurt their reputation) and was not privileged (IE: In Congress). Public figures, however, have the added burden of proving “actual malice” or that the defamation was intentional. Most bloggers likely qualify as public figures.
If you want to learn more Nolo has a great guide on defamation law to get you started.
5. Contract Law
Contract law is a good area of law for anyone to understand as we all have to sign agreements for various things in our lives. But, as a webmaster, you’re probably constantly registering for services and agreeing to their terms.
It’s important not only to understand what it is you’re agreeing to but that you can do so easily electronically. As per the ESIGN Act, every time you tick a box to agree to a TOS, you’re having the same effect as if you had held the physical contract in your hand and signed it with ink.
So it pays to take a moment, grab a legal dictionary and read through your agreements, it’s worthwhile for anyone but especially webmasters.
Bottom Line
The good news in all of this is that you don’t have to become an expert in these areas of law to get by, just know enough to understand where the gray areas are when you need to seek out more help.
Going into them blind, however, is potentially dangerous for anyone posting on the Web as ignorance is never a legal defense for violating the law.
If you want to avoid seeing the inside of a courtroom, the best thing you can do is start educating yourself now and get smarter about these issues.