When it comes to blogging and the law, we hear a great deal about what the law prohibits us from doing.
Bloggers are quick to gripe when they can’t post the music they want on their site, say what they want about another person or generally do all of the things that they want to do. For the most part, blogging (at least in the US) is governed by traditional mass media law and that law and that law was designed, mostly, to protect others from the media, not the other way around.
But that’s not to say that there aren’t parts of the law that protect bloggers and give you both powers and tools to make your life easier and your site better.
So, with that in mind, since it is nearly Thanksgiving in the US, we’re going to stop and give thanks to five laws (or sections of laws) that you can be thankful for this holiday season and beyond.
Because, while the law may mostly be a confusing morass of restriction, that doesn’t mean we can’t be grateful for the bright spots it does have.
1. The Freedom of Information Act
The Freedom of Information Act (FOIA) is a Federal law in the US that gives anyone access to information from the Federal government. Basically, by filing a request and paying a small fee, you can obtain government records on nearly any topic you can imagine.
While there are exceptions to the rules, such as classified information, confidential commercial information and documents shielded by other laws, most documents can be requested through an FOIA request.
Best of all, as a blogger, you may be eligible for a fee waiver or fee reduction in getting the records as you could be considered part of the media. This means that, if you’re researching something in the Federal government and are planning to publish what you learn on your site, the process may be cheaper for you.
The FOIA has been proven many times to be a powerful tool for getting information from the government, including information that was embarrassing when released to the public.
2. Federal Government Copyright (or Lack Thereof)
If you complete an FOIA request, you may be wary about posting your government documents on line due to copyright: Don’t be.
Under US law, all works created by the Federal government are placed into the public domain. There are many reasons for this, including concerns about the government using copyright to stifle criticism and concerns that citizens, who paid for the work through tax dollars, would be unable to exploit the work if it were protected.
Bear in mind that state and local/state governments have no such restrictions and the Federal government can still hold copyrights that are assigned to it, but works created by Federal employees as part of their job are typically free to use. This even includes the latest pictures from the Mars rover and other NASA creations.
So if you want to exploit woks of the Federal government, please feel free. Wikimedia Commons even has a decent-sized library of them.
3. The Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) has been a controversial law since day one. Based on treaties signed in 1996 and implemented in 1998, the law has been a lightning rod, especially for its anti-circumvention provision that made it illegal to break so-called digital locks (DRM) and access content, even if it would otherwise be legal.
But the law was multi-faceted and one provision, the safe harbor provisions, have been very useful to both bloggers and the Internet.
The safe harbor provisions basically made webhosts and other third parties that host content from others non-liable for infringement performed by those third parties. All that was required was that they designate an agent to receive notices of infringement and remove such works expeditiously upon notification.
As a bloggers, this means two things. First, if you see your work elsewhere in an infringing manner, you can likely get it removed easily. Second, it means that you will most likely not be liable for any infringements committed by people in your comments, forums or anywhere else you have visitors post, so long as you act appropriately. In short, it’s a shield against being sued for infringement and a sword to deal with infringements of your work.
However, what we should be most grateful for is that the DMCA made much of the Web possible. Before the DMCA, the legal standing of sites that hosted content from third parties was vague at best. Sites such as YouTube, Facebook and Reddit couldn’t hope to survive if they could be held liable for every infringement their users make.
It may not be a perfect law, but it was good enough to build the modern Web on.
4. Anti-SLAPP Laws
A strategic lawsuit against public participation (SLAPP) is a lawsuit that seeks to silence criticism or unwanted speech not by winning a lawsuit but by burdening the defendant, usually the speaker, with high legal costs that they can not afford.
For example, if you posted a negative review of a large company and they sued you for defamation, even though your experience was provably true and they know it to be so, it might be considered a SLAPP.
While there is no Federal Anti-SLAPP law, there are such laws in 28 states (including the District of Columbia). These laws make it easy for a defendant in a SLAPP to have the case quickly dismissed and recover any legal costs.
This can be very helpful to bloggers, who are often the victims of SLAPPs, and may make the issue well worth researching if you are in a state with Anti-SLAPP laws on the books.
However, without a Federal law, some potential plaintiffs may do what is known as “forum shopping”, meaning that they will look for a state without such protections to file suit in. This makes it important for bloggers to push for a Federal statute if they want complete protection under the law.
5. Section 230 of the Communications Decency Act
The Communications Decency Act of 1996 was a misguided attempt by the government to restrict access to pornography online much of the law was almost immediately struck down as unconstitutional. However, one part of it, Section 230, lives on today and impacts bloggers every day.
Section 230 deals with defamation and, basically states that third parties that provide platforms upon which others commit defamation can not be treated as the speaker or author of it. Basically this means that, if someone posts defamatory content in a comment or forum post on your site, you are not liable for it, even if you refuse to remove it.
While Section 230 is not without its critics, especially those who have been victimized by defamation attacks, it has largely been good news for bloggers and community admins who no longer have to worry about defamation lawsuits unless they post the content themselves.
In the end, the law is never going to be perfect and no one is going to be completely happy with all of the laws on the books. Even all of these laws, despite, being of great benefit to bloggers, have their detractors and critics.
In short, with the law, one person’s boon is often another person’s disaster.
Still, given how much it can feel like the law is never on the side of the blogger, it’s important to note that, at least some times it is.
So, as Thanksgiving rolls around, if you’re celebrating, take stock in the laws that you can be thankful for as well as your other blessings in life.
And, most importantly have a happy Thanksgiving.