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By Alfred C. Frawley

Blogging is a phenomenon that attracts new writers every day. In fact, each hour two thousand new blogs are created. There are seven to eight million blogs or on-line diaries currently and the number grows. Blogs afford small businesses a low-cost way of making an impression on their market. But small and start-up businesses should consider how a blogging policy could help avoid the legal implications of online publishing.

Blogging is publishing, just as is traditional newsprint publishing or broadcast media publishing. Whether you are a for-profit publisher, an independent writer or an employee blogging on company time, you are subject to the same rules and legal standards as other publishers. No new legal rights or obligations are created by blogs. It is simply a different means of carrying out existing activities. However, given its capacity for nearly real-time dialog, blogging may result in your employees publishing information before carefully considering the consequences.

In the blogosphere, nothing is private and everything published is subject to legal implications including: defamation and libel, copyright and trademark issues, rights of privacy and business-related intellectual property issues. Let's look at each.
Defamation and Libel: Defamation is a key area of exposure for blogs. Generally, defamation involves a false statement of fact published to at least one other person concerning a third person that injures the reputation or standing of a third person.

Truth, of course, is a defense. Generally, name-calling is not enough, but if that name-calling impacts an individual’s standing or reputation in the community it may support a finding of libel. If the object of criticism is a public figure, he or she must also prove actual malice on the part of the blogger. The laws on libel vary somewhat from state to state. In practice, this means that a blogger should be cautious about critical comments concerning someone that can be, or is, identified in the blog. Some states also have so-called “retraction statutes” which ameliorate damages if a retraction is demanded and printed on the blog. With that in mind, bloggers should be aware that even though the blog is posted in one state, it can be read by anyone, anywhere, and is subject to libel laws of the state in which it is read.

Copyright and trademark issues: Copyright protection applies broadly to the contents of blogs and is triggered when the work is created and no additional steps need be taken. The creator of the blog may register his blog with the U.S. Copyright Office. That provides additional remedies in protecting against infringement. Whether registered or unregistered, an individual may grant or withhold permission for somebody else to use, copy, distribute or republish work on his or her blog.

Blogging raises additional opportunities for copyright infringement. Blogs contain creative expression; since it appears in digital form, it is easy to copy or cut and paste copyrighted materials of others. In fact the nature of blogging--which relies on a flow of commentary and opinion--sometimes encourages copying other persons’ work in the review, comment or criticize.

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Alfred C. Frawley is a partner at Preti Flaherty Beliveau Pachios & Haley LLP.
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