The Rise of the Blog – Legal Risks and Liability

Whilst the Clinton presidency had to deal with lurid tales of Monica Lewinsky peddled by the Drudge Report, the Bush presidency has faced damaging attacks about politician Trent Lott¹ by committed “bloggers”. When the mainstream media failed to take notice, bloggers forced Trent Lott to apologise and then resign. The New York Post noted that “the new medium of blogging is maturing before our eyes”.²

It’s not just politicians who are taking an active interest in blogs. The recent purchase by Google of Pyra Labs,³ a blog hosting company, has raised the profile of blogs in the corporate world and the first business conference on blogs is expected to take place in Boston in June 2003. Soon you will be able to maintain your “blog” direct from a mobile phone: NewBay Software, an Irish software company, is hoping that its FoneBlog software will take off and promote the use of the media, so potential bloggers will be able to update their “blogs” in real time by sending images and text from their mobile phones.

What is a blog?

A web log or a “blog”⁴ is not a new phenomenon; they were created as early as 1993.⁵ The concept of the blog gained popularity in the US initially but has spread to the rest of the world. Blogging became an essential tool in the latest Gulf War.⁶ There should be no mystique about a blog: it is simply a Web site containing (usually) diary entries, links and news. The blog usually portrays the personal life or the political views of its creator.⁷ It is estimated that there are now over a million blogs.⁸

The rapid growth of push button publishing applications has helped to sustain the spread of blogs as it is relatively cheap to create and even easier to maintain as there is no need to learn HTML. For example, a business could use a blog to deliver punchy sound bites and information to its clients or develop a dynamic knowledge management resource for its employees. Knowledge management blogs are known as k-logs and legal blogs are, unsurprisingly, known as “blawgs”. Like its forerunners, the parody Web sites and the sucks Web sites, the immediacy of a blog can be used to successfully target well-known companies: in recent weeks, a disgruntled Dixon‘s customer has set up a much publicised blog to highlight the poor service provided by Mastercare, a Dixon‘s associated company.

E-Commerce Regulations

As with any online venture, there are certain key legal issues that must be given careful consideration before the blog is established. These include intellectual property rights, data protection, defamation, linking and the use of confidential commercial information. The onus will be on the business to ensure that all content uploaded does not give rise to a civil or criminal liability in the jurisdiction at which it is directed. If the blog is directed at the United Kingdom, then the blogger will have to comply with UK laws including the Electronic Commerce Regulations 2002 which apply to all forms of commercial activity conducted online (ie advertising and selling goods or services online or the provision of the means of access to a communications network). Accordingly, service providers must make certain information available to recipients in a form and manner that is ‘easily, directly and permanently’ accessible. The information includes the service provider’s name, geographic address and contact details (including e-mail address). The Regulations state that any references to prices must be clear and unambiguous and indicate whether they are inclusive of tax and delivery cost. A service provider who is subject to VAT must provide its VAT number. The Regulations require additional information from service providers such as lawyers or accountants. Therefore, details of any regulatory body, the professional title, the member state where that title has been granted, and the relevant professional rules must be provided along with the means to access them. This can be achieved by using a hyperlink to the relevant professional rules of conduct.

Intellectual Property Rights

Like any Web site, any content will be protected by copyright and database rights. As provided under the Copyright, Designs and Patents Act 1988, copyright would subsist in any original literary or artistic work such as the text, the look and the feel of the blog, the arrangement of the blog, the graphics or photographs. The database right under the Copyright and Rights in Databases Regulations 1997 should protect the content, as a blog is a dynamic database. As updates are continuously made to a blog, such updates will extend the period of protection of 15 years on a rolling basis. It may also qualify for copyright protection as a database under the CDPA 1988, s 3.

Data Protection

Some interactive blogs invite Internet users to submit comments and, in this way, e-mail addresses are collected and displayed as part of the blog. The Information Commissioner has stated that an e-mail address will be personal data. Personal data is defined under the Data Protection Act 1998 as anything that identifies a living individual. It is arguable that if a nickname (frequently used in this type of circumstance) is provided, then this may not constitute personal data under the DPA 1998 provided it does not identify to an individual by itself. If personal data is processed then such processing must comply with the eight data protection principles.

Defamation

There are statutory defences available to an ISP for innocent dissemination of such content under the Electronic Commerce Regulations. Such defences will only be available to the ISP rather than the owner of the blog. It is essential that swift action should be taken to remove such content if a complaint is made. In a recent Australian decision,⁹ the Australian High Court upheld a decision of the lower court that allowed a wealthy Australian businessman to pursue his defamation action against Dow Jones in the Australian courts rather than having the action decided by the State of New Jersey where Dow Jones’ Web servers resided. This decision sets an important precedent and is highly persuasive but not binding as far as the English courts are concerned.

Now the reporter at the centre of the case has appealed to the United Nations to resolve this jurisdictional conundrum and has filed a petition with the Human Rights Committee alleging that the decision by the Australian High Court has breached Article 19 of the United Nations’ International Covenant on Civil and Political Rights. Under Article 19, an individual is entitled to the right to hold opinions without interference and to the right to freedom of expression.

Hyperlinks

Hyperlinks form a key feature of a good blog and may even be its raison d’etre. Simple links from a blog to another Web site would not normally amount to copyright infringement. In the Shetland Times v Willis decision,¹⁰ the Scottish court suggested that deeper links (ie to underlying Web pages) might amount to copyright infringement; there is no full UK decision on this matter. In the US case, Ticketmaster v Tickets.com,¹¹ it was decided that deep links would not by themselves cause unfair competition. Nevertheless, it is advisable to obtain consent before any deep-linking takes place.

Advertising and Web Accessibility Rules

A blog will be considered to be a form of advertising. Any representation that is made in connection with a trade, business or profession will have to comply with the Control of Misleading Advertising Regulations 1998. All forms of advertising will need to comply with the Advertising Standards Authority’s codes and practices. In addition, all adverts must be decent, honest, accurate and up to date. If a blog is targeting Internet users outside the UK, then specific local advice will be required on any applicable local advertising regulations. Particular care should be taken to ensure compliance with Web accessibility requirements under the Disability Discrimination Act 1995 if services and/or goods are provided to the public, as the Disability Rights Commission are currently undertaking a comprehensive audit of Web site compliance.

Conclusion

Would-be business bloggers should not be deterred by any of the legal issues discussed above. Blogging can be a very useful tool provided some practical measures are taken to protect intellectual property rights and to limit liability. Liability should be minimised by using terms and conditions (including disclaimer, copyright, database and trade mark notices) and adhering to a specified privacy policy. The future of personal blogging continues to expand: soon bloggers will have the capability to post audio files in MP3 format to their blogs. Then blogging will become a truly vox populi.

1. The Republican Senate Leader for Massachusetts who made unsavoury comments at Senator Strom Thurmond’s 100th birthday celebrations and resigned following the ensuing onslaught. (see www.cnn.com/2002/ALLPOLITICS/12/20/lott.controversy/index.html) Tripped Up By History – www.time.com/time/archive/preview/from_redirect/0,10987,1101021223-399922,00. See also the Guardian Unlimited (www.guardian.co.uk/usa/story/0,12271,864036,00.html).

2. John Podhoretz (see www.nypost.com/postopinion/opedcolumnists/51499.htm)

3.The owner of www.blogger.com and www.blogspot.com services.

4. The term “blog” was invented by Jorn Borger (www.robotwisdom.com).

5. Marc Andreesen’s What’s New is considered to be the first ever blog. It is now archived at http://archive.ncsa.uiuc.edu/SDG/Software/Mosaic/Docs/old-whats-new/what-new-0693.html.

6. Blogs created after September 11 became known as “warblogs”. This trend was continued in the second Gulf war. See www.dearraed.blogspot.com/ – the Baghdad blogger – Salam Pax.

7. www.tom-watson.co.uk/ – the first blog by a British member of Parliament. See also the Saddam Hussein blog – saddamhussein.blogspot.com/.

8. There are plenty of excellent blogs – see Blogdex (blogdex.media.mit.edu/) for a list of blogs.

9. Dow Jones & Company Inc. v Gutnick [2002] HCA 56 (10 December 2002) ^{– see vol 13, issue 6.}

10.[1997] FSR 604.

11. 54 USP Q2d 1344 (C.D. Cal 2000) 27 2000.