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THE LEGAL RISKS OF BLOGGING: It’s one man’s hobby and another’s fortune but Blogging can pose a legal risk for all.

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Blogging has become a hobby for many, an opportunity to make an income from the comfort of their home for others. It has even become a verb.
For the baffled non-bloggers amongst us, a ‘blog’ is an online journal. Between 2004 and the end of 2011, the number of blogs on the web exploded from four million to over 181 million, and its popularity has continued to increase exponentially.
However, like any other form of online publishing, blogging is not exempt from the laws of the paper-based world that existed long before it became fashionable.
The law still applies to often unwitting bloggers who share their opinions daily on the ‘blogosphere’. Not being across the legal implications can mean financial loss, risk and, in the most extreme cases, even prosecution.
So if you blog, or are blogged about, here are some of the laws that might make you stop, think and un-blog any contentious content…
A blog comprises a collection of work created by its owner or others. In Australia, copyright is granted automatically upon creation of an original work.
Copyright laws protect a range of original works, including literary, artistic, dramatic and musical works.
Blogs often contain refer to or use literary works such as an article, or an artistic work, such as a photograph or illustration.
An owner of copyright has exclusive rights, including the right to reproduce and to communicate the work to the public, including via the internet.
Copyright infringement could occur where a blogger substantially reproduces another person’s original literary or artistic work without permission.
Determining whether or not a substantial reproduction of a work has taken place is a matter of quality and not quantity. Court cases assist to define what will amount to a substantial part.
If the part of a work that a blogger (without permission) reproduces is key, distinct, important or essential to the work, then it is likely to be a substantial part. Consequently, copyright has been infringed.
In Australia, the defence ‘fair dealing’ may be available to anyone who uses an original work belonging to another. However, the fair dealing provisions should be relied upon with caution.
And, remember, just giving a credit to the author or creator of an original work doesn’t cut it when it comes to a defence to copyright infringement.
Moral rights
The creator of an original work also has moral rights. Unlike copyright, moral rights are attached to a creator and recognise an author’s ongoing connection with the work.
Moral rights entitle a creator of a work:

  • the right of it being attributed to them;
  • the right against false attribution, and
  • the right of integrity against derogatory treatment of a work.

So, if you are a blogger and wish to feature another person’s work in your blog, you must:

  • first obtain permission from the creator;
  • ensure that you attribute the creator correctly; and
  • ensure that you do not change the work or do anything that may be considered derogatory treatment of the work.

Many bloggers do not observe a creator’s moral rights, particularly when it comes to the right of attribution. This can lead to an order for damages, which could mean parting with money.
Trade marks
A trade mark may be a letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent, or any combination of these.
It is used to distinguish the goods or services of one trader from those of others.
Trade mark infringement occurs where one trader uses the trade mark of another and creates the likelihood of confusion in the market place. In the online environment, this often relates to the use of logos, brand names and sometimes, domain names.
Subject to a few exceptions, the owner of a trade mark can prevent another person from using an identical or similar trade mark. Unauthorised use of a trade mark can result in compensation, delivery of profits derived from the misuse of the trade mark and in some cases, irreparable brand damage.
A blog is commonly used to express opinions and views, often in relation to another person or business. Therefore, you must be careful to not publish any material that is defamatory.
Defamation is a communication that is made to one or more persons, that lowers the reputation of an identifiable third person and where there is no legal defence available to the communicator.
The publisher of allegedly defamatory material can be anyone who takes part in the publication or replication of such material, so if you own a blog and post material is that potentially defamatory, you could also be liable.
Blogging can be for fun or income. However, regardless of the reason why you’re blogging, it comes with some real legal risks.
Respecting the economic rights of a copyright owner and the personal rights of a creator is essential. Failure to do so could be fatal to your business and personal brand.
Always think carefully before posting content online, consider the consequences and remember, ignorance is no defence to the law.
Happy blogging!