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More than 179 million Americans use social networks and blogs, according to a recent eMarketer report, but more than half (57 percent) of Americans who use social media have posted or texted something that they regret afterward. According to the 2015 YouGov survey, the major regret cited is concern about harming a workplace reputation. A social media user should be aware of some of the most prominent legal issues that may arise from posting content.
Q: If I write my own blog or post on sites, can I say anything I want?
A: In a landmark 1972 U.S. Supreme Court decision, Justice Byron White explained that the freedom of the press is a “fundamental personal right” not confined to traditional media like newspapers and magazines. For most of American history, lawsuits regarding freedom of the press have focused on news outlets that profit from selling their coverage and commentary about others. Now that a studio or printing press is no longer needed to reach mass audiences, bloggers whose postings generate controversy also may become targets of lawsuits. As a blogger, you should remember that the protection of your speech has limits. Just as the law does not protect a person who yells “fire” in a crowded theater when there is none, your right to free speech is not absolute.
Q: Do I have to use my name when blogging or posting online?
A: You can choose to let the readers know your identity or you can remain anonymous. Supreme Court rulings have equally protected the rights of both known and anonymous authors. Recent defamation lawsuits brought by individuals and businesses have had varying degrees of success in forcing Internet service providers to provide the true identity of an anonymous blogger or comment poster.
Q: Might I be guilty of defamation for something I say or write?
A: Yes. “Defamation” is damage to someone’s reputation caused by a public, intentionally false statement that is presented as a fact, either through speech or the written word. In general, a private citizen claiming defamation must prove your comments were false and that you acted negligently in failing to discover the truth. A public figure claiming defamation must prove “actual malice,” meaning that you published the comment even though you knew it was false, or you showed reckless disregard for the truth.
Q: What is invasion of privacy?
A: Invasion of privacy generally means you’ve intruded into someone’s private secluded area or private affairs and published information without his or her consent. Invasion of privacy claims may also arise when you publish personal details that have not been made public, such as a person’s sexual orientation or a private romantic encounter.
Q: What are copyright and trademark infringement?
A: Copyright infringement occurs when you post someone else’s creative work, like a photo or a song, without his or her permission. There is a “fair use” exception that allows you, in certain circumstances, to post copyrighted material, but it is often difficult, without legal help, to determine what might be a “fair use.” Trademark infringement involves improperly using someone else’s business logo or material. Generally, you may not use a business logo or material for commercial purposes that might lead consumers to believe that you are affiliated with a company or product that is not yours.
Q: If I accept posts from another person, might I be liable for a defamatory statement made by someone else just because it’s on my blog?
A: Probably not. Bloggers, media sites, Internet service providers and others who host forums online have immunity from defamation claims regarding statements made by someone else and posted on a blog or website. This immunity is provided by the federal Communications Decency Act, Section 230, which protects any “user” of an interactive computer service who did not create the defamatory statement. Also, the federal law likely will protect you if you are passing on information provided by others that you have not altered. However, this immunity is not guaranteed. If you are actively gathering information on your own and publishing it on your blog, or if you edit and knowingly change and post someone else’s statement, then Section 230 may not shield you.
Q: Can my employer control my blogging or posting at work?
A: Many employers are allowing and even encouraging their employees to blog and post., but they are also taking steps to limit employee activities to protect the business interest. Employers are wise to share policies concerning blogging and social network conduct with their employees. However, some employee communications are protected by law, so employers should be careful about attempting to discipline an employee for work-related comments made on an employee’s personal blog or page. Protected communications include those that have to do with protected activities such as whistle-blowing or conducting union activities, and communications about a protected status (such as discrimination by gender or race).
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Dan Trevas, a Columbus attorney and former news reporter for print and online news services.