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| photo courtesy of hello owl |
Recently I gave a talk to a gorgeous bunch of bloggers at the Say Hello Workshop, run by Hello Blogger Events. I spoke about the law as it applies to writers – and yes, bloggers, this means you too.
Problem is, if you haven’t been taught it, you probably don’t know. But you can still be sued anyway!
Now I’m going to mention here I am in no way a lawyer. I am an academic, I teach this subject at university as part of the journalism program. If you have serious issues, or you need thorough advice, please consult a lawyer.
Whew! So formal.
Anyway, what I’d like to do here is give a quick rundown of some things you should be aware of, as publishers. The minute you write something that others read, you are subject to the same laws and conditions as other writers, “professional” or not – and a lot of these things are really not quite clear. Please bear in mind this is a super-basic overview and remember it is specific to Australia.
I also want to remind you to not panic – these rules do sound strict and scary because, well… they are. It doesn’t mean that you have to pull every post you’ve ever written and second-guess every tweet. Just be aware and write smartly. And when in doubt – DON’T!
***
:: First of all, the notion of freedom of speech. I am very sorry to say that in Australia, we have no legally enforceable right to free speech. Unlike the US, where it is enshrined as a fundamental human right in the amendments to their constitution, we have no legal document protecting our right to express our opinions.
What we do have is an “implied” right to freedom of speech. Basically we can say what we like as long as we don’t go too far. It is an implied right that is constantly balanced with the right to one’s reputation.
:: Which leads me to defamation. This deserves several blog posts of its own, so I’ll have to be shockingly brief. Basically, anybody can be sued for defamation. The minute your writing/drawing/video/gesture/facial expression is seen by a third person (other than you and the person you’re defaming), you are liable.
That’s right – just one other person. It doesn’t have to be broadcast to a large audience. It doesn’t even have to be a newspaper article or a blog post. It can be a text message, an email, a tweet. It’s “publishing” in a legal sense.
In order for defamation to be actionable, it needs to have a “defamatory imputation” – in other words, something nasty about someone. It has to obviously refer to that person… and you don’t even have to name them outright. If we can tell who it is to whom you’re referring, they can take action. And the last thing is that it’s been published to at least one other person.
Imputation. Identification. Publication.
Like I said, you’re not safe if you write a post describing someone but stop short of naming them. If they’re identifiable even by a handful of people, the injured party can sue.
If you feel you’ve been defamed, you need to see if it meets the above criteria. Your reputation needs to be damaged. People need to be shunning you, avoiding you, ridiculing you… you’re not defamed if you merely feel offended, or you think the other person is nasty. It has to have a real and lasting impact on your reputation. If your reader army comes to your defence, then it’s likely you’ve not been defamed. (Yay for loyal readers!)
You also need to be aware that what constitutes defamation in Australia may not elsewhere. And vice versa… if you retweet or repost something from a country with more lax laws, you could still be liable here.
:: Copyright of your work is immediate. Once you create something it is yours and nobody is allowed to take it. Even if you don’t publish it publicly. You do not need to lodge it anywhere, fill out any forms or put a copyright symbol on it. The copyright symbol is a good idea perhaps to remind people that may not be aware of this law, but it is not necessary.
If you are concerned about someone taking your hard work, then keep a record of when you produced it (which is easy in the case of blog posts), and if they’ve taken it without permission, you have several avenues of recourse – ask them not to use it, to take it down if they have, threaten with legal action, settle out of court, or take them to court. It may just be that someone liked it and wanted to share – not that they were out to undermine you. If you didn’t know the law of copyright, it’s likely they don’t either.
As a blogger, if you want to use someone’s stuff – then ask. The problem with the internet is it’s so huge and it’s so hard to police. If you’re going to use a picture and you’re not sure of its licensing requirements, then at least link back to the original source. Don’t just cite the source as “Pinterest” (boy, that’s a whole other blog post), but find the person who created it and provide a link to them. Hardly anything on the internet is free… but if you’re not making a profit from it or using it for commercial use then they may be happy for you to use it to illustrate your point. Be prepared to take things down immediately if you’ve been found to have breached their terms of use.
***
I feel dirty making that so brief, but I wanted to get across a few points that you need to be aware of, and I wanted to do it quickly and without overwhelming anybody.
In my work, I teach from the textbook The Journalist’s Guide to Media Law, by Mark Pearson and Mark Polden. It is an incredibly handy reference, written in an easy-to-understand style. Mark Pearson is on twitter here, and his website/blog is here. He has recently written a book called Blogging and Tweeting Without Getting Sued, which I’ll be buying as soon as it comes out next month (obsessed much?).
If you have any questions, I can try to answer them or at least point you in the direction of where you might find more information. I hope you’ve at least found this helpful and maybe cleared up some confusion. I’m willing to bet it’s done nothing but created it!
Amy Rea says
March 12, 2012 at 9:31 pmThanks for the tips Stacey.
Veggie Mama says
March 12, 2012 at 9:33 pmYou're very welcome 🙂
Naomi Ellis says
March 12, 2012 at 9:49 pmAwesome blog post Stacey. Very clear and a great resource for bloggers. N x
Rhianna says
March 12, 2012 at 9:58 pmI really wanted to go on the weekend, but alas, 200+ kms and $$ all stood in my way. Thank you for posting that, Stacey!
Lexi T says
March 12, 2012 at 10:26 pmThank you.
Is it okay if I tweet the link to this?
Now I am being a smartass, but it really is that easy.
Bettina says
March 12, 2012 at 11:28 pmThank you so much for this information.
Bettina @ http://lovelylittleone.blogspot.com
Sass says
March 12, 2012 at 11:30 pmYou were fabulous!! xx
Smaggle says
March 12, 2012 at 11:58 pmWow. So much info I didn't know. I already knew that once you send an email that person has the right to publicly publish it so I always avoid putting nasty things in writing. Not that I'm ever nasty! 🙂
That's why, when writing about close friends or family, I often change their gender or relationship to myself to protect them. They often don't even know that I'm writing about them!
Jessica Nazarali says
March 13, 2012 at 12:21 amGreat tips! Thanks for sharing xx
Kelly Sammut says
March 13, 2012 at 12:31 amThanks so much Stacey for the great information.
Maureen says
March 13, 2012 at 12:46 amStacey, I loved your presentation. Much is common sense but my sense comes from a US background. I found your talk informative, engaging and very relevant to what we bloggers do every day.
Alyce says
March 13, 2012 at 12:56 amGreat post! And from someone who knows her stuff. Thank you!
Maria Tedeschi (Mum's Word) says
March 13, 2012 at 1:54 amExcellent post. I learnt all this at uni as part of my journalism degree and it's so important to get it out there. Not just for the bloggers who write but for people who claim to be defamed without really knowing the ins and outs of it.
Love & stuff
Mrs M
Miss Pink says
March 13, 2012 at 3:44 amThank you for taking the time to write this.
Very very good points that I think everyone should be familiar with.
Geof Lusins says
March 13, 2012 at 3:53 amYou said it better than my writing teacher, as part of our Writing for creative industries course we all have to keep blogs, a lot of the students have no idea what you can and cant put on a blog, I might send them this way to read this article
geof666
Kookai_smile says
March 13, 2012 at 4:16 amThank you . It is very clear .
Veggie Mama says
March 13, 2012 at 4:20 amAnd you are too kind xx
Veggie Mama says
March 13, 2012 at 4:21 amThey do if you haven't sent it to them in confidence. If it was obviously meant to be kept between the two of you, they can get in trouble. And yeah, I do the “change identifying characteristics” bizzo a bit too! They've got no idea 🙂
Veggie Mama says
March 13, 2012 at 4:21 amYou're very welcome 🙂
Veggie Mama says
March 13, 2012 at 4:22 amYes, I'm slightly passionate! 😉
Veggie Mama says
March 13, 2012 at 4:23 amIt is common sense, but so many people don't know the copyright thing and think they must jump many hurdles to protect themselves. I guess that's not really obvious! I hope this helps them 🙂
Veggie Mama says
March 13, 2012 at 4:24 amoh yes, lots of people cry “defamation” and it's nowhere near. I love the idea we can all self-publish, but I worry that not everybody knows the pitfalls. I wish there was some kind of blogger law class that we could all go through!
Veggie Mama says
March 13, 2012 at 4:24 amYou're very welcome, I hope you find it useful x
Veggie Mama says
March 13, 2012 at 4:25 amGeof! You read my blog? yes, sometimes it's hard to narrow it down to the basics to make it understandable… I've been sitting here all day thinking of all the things I could have included. If anything, this will give it to 'em quick 🙂
Veggie Mama says
March 13, 2012 at 4:25 amPhew!
Veggie Mama says
March 13, 2012 at 4:26 amOhhhh the things I wanted to include! But in the interests of clarity I declined. I'm pleased it worked. Thanks for your kind words xx
Veggie Mama says
March 13, 2012 at 4:26 amsame!
Christie @ Fig & Cherry says
March 13, 2012 at 5:39 amAwesome post! As someone who works in the marketing and copywriting industry I forget that some people aren't aware of all this mumbo jumbo. Nice work laying it out clearly.
And… you looked gorgeous at the presentation – love that yellow skirt!
Kellie @ Three Li'l Princesses says
March 13, 2012 at 9:18 amThis is so drummed into me as a journo. I'm glad someone's spreading the word to bloggers too. Well done. x
Veggie Mama says
March 13, 2012 at 9:23 amIt honestly worries me what I see written sometimes… I'd hate for someone to get in trouble just because they don't have the benefit of learning like we did xo
Ms_MotorbikeNut says
March 13, 2012 at 9:26 amThank you heaps for this post I'm studying also the course I'm studying is Undergrad Bachelor of Criminology & Criminal Justice via OUA as well as Introduction to Writing via OUA.
You have a great website & am now following you on twitter.
(((( Hugs )))) XXXX Kisses XXXX
Veggie Mama says
March 13, 2012 at 9:35 amI'm pleased it was helpful! good luck with your studies.
Deb @ Aspiring Mum says
March 13, 2012 at 9:41 amThanks so much for this! I was disappointed not to make the workshop on Sunday, so I'm gleaning all the information I can from those who were there!
Veggie Mama says
March 13, 2012 at 9:43 amhaha this is almost as good!
Naturalnewagemum says
March 13, 2012 at 9:45 amSooo if I post something that is true for me and I name a company and its not the most flattering thing, is it still defamation? or just an opinion?
Veggie Mama says
March 13, 2012 at 9:49 amIt would depend what you said. If it is your honest opinion, based on fact, then you could have a defence. If you didn't say anything that damaged their reputation, it's probably not defamation. You're reasonably covered with the honest opinion defence if you were reviewing something. Depends on how far you go with your criticism and how much it impacts them.
Gillian James says
March 13, 2012 at 10:20 amIt was so great to hear your presentation on Sunday- Heavy info delivered in an understandable, accessible way. Thanks, Stacey!
Maxabella says
March 13, 2012 at 11:57 amYou are a clever cookie, Stacey, and whoa baby… that's some serious stuff there and now I'm freaking out and may never write on my blog again.
Original source of pictures you say… eeek, if only I could find them!!! I am the worst at 'via weheartit', via this, via that. But all links seem to lead back to those dreadful Tumblr blogs who credit nothing, ever but the pictures are so pretty and I want them and… yes, I take your point.
Oh and now I'm off to click on that button in your sidebar that says 'menu plans' because I'm aaaaalll about the menu planning right now. Ta!
x
Denysewhelan says
March 13, 2012 at 12:48 pmStraightforward & very clearly written Ms Stacey! Top of the class.. Yours.. Seriously it is so important to have this in writing – when we had The Law drummed into us by the Department of Education's team of lawyers it can sound incredibly scary. we were told you “won't lose your house” if there is no intent nor malice in relation to our management of a school where a parent or kid was suing. The Dept covered us. But, as independent bloggers (publishers) it is us personally who must ensure no way the words can be a source of legal action.
I am following the Prof as above now, and will be interested in his book.
Another aside, when I moved from blogging for free (and still do!) into the world of advice & consultation I needed to ensure I had coverage through professional indemnity.
Ah, the world… We need to be covered against ourselves really!
Great topic, and you are a great teacher too!!
Peggy Saas says
March 13, 2012 at 1:07 pmBrilliant, very informative Stacey. I was browsing the web for copyright info when I first started my blog, it's not always easy to find information on the bare basics.
Thanks for sharing your knowledge.
Diane Balch says
March 13, 2012 at 3:37 pmThank you for bringing up a subject that is in the back of all of our minds. Very reassuring.
Kelly Exeter says
March 13, 2012 at 10:21 pmThank you for this Stacey!! Brief it may be, but you have made it very easy to understand!
Veggie Mama says
March 14, 2012 at 12:01 amI'm pleased you got something out of it! It's always a challenge to set this kind of thing out in understandable bits.
Veggie Mama says
March 14, 2012 at 12:06 amHaha oh darling, I've definitely noticed your penchant for crediting the wrong source but to be honest… the internet is BIG. the likelihood of you getting into real trouble is infintesimal. And if there really was a problem, they'd be going after Pinterest and not really you! I'm guilty of using stuff without asking, but I try to get the proper credit. At least you're not one of the people I've emailed in a panic going “oh my god, take that down! DO YOU KNOW WHAT THE HELL YOU'VE JUST DONE?!!”
And if I could punch Tumblr in the face, I probably would. Although they're probably running decoy for the rest of us, being so blatant about their uncredited sharing. Who's got time to worry about what we're doing when they're breaking every rule known to publishing?!
Hope you found something to inspire your plans… xx
Veggie Mama says
March 14, 2012 at 12:07 amYes, the internet is a wild frontier… if you're self-taught and self-published, nobody ever tells you these things!
Veggie Mama says
March 14, 2012 at 12:08 amIt's all written in legalese, that's why! If you have any questions, please ask. If it's any consolation, I've always been impressed you've credited your pictures correctly even though you might not have known the ins and outs of copyright xx
Veggie Mama says
March 14, 2012 at 12:08 amYes, I wonder how often anybody thinks of this!
Veggie Mama says
March 14, 2012 at 12:09 amI can always expand later, if anyone's interested! I've had a few requests for a Pinterest post x
Katepickle says
March 14, 2012 at 1:05 amI knew this would be a great post and it was!
I don't know much about defamation but the copyright info I have learned from working ion graphic design has me cringing over and over when I see people using images without permission… and even using images from big companies and corporations and then changing them to be less than flattering…. eek!
So glad that this information is getting out there, ignorance is no excuse!
Veggie Mama says
March 14, 2012 at 1:27 amOh my gosh, I know – when they photoshop a picture or words or something over a logo? Gah! The whole crediting pinterest or tumblr drives me spare. And the recent raft of putting pictures on facebook without crediting the creator? I feel a post coming on!
Rosalind Grace says
March 14, 2012 at 3:17 amA friend just sent me this link as I posted yesterday about what you can do when your blog gets pirated by a spammer – grrr… as has just happened to me. If you have any further insight into this topic I would love to hear about it. I have submitted complaint forms to google but would love to do more.
Veggie Mama says
March 14, 2012 at 3:53 amOh spammers are incredibly difficult to trace… unfortunately there isn't much you can do, and even less that Google can. Did they do much damage?
Rosalind Grace says
March 14, 2012 at 4:09 amNot damage to my own blog but just having a copy of my own photos (& of my children) on a blog used for spamming makes me feel sick. Always the risk when you put your stuff out there, I know. I just hope google disables the right blog if they even do anything.
Veggie Mama says
March 14, 2012 at 4:15 amCan you imagine how many requests they get for this every day?! It's outrageous. And really – they're not in control of the content of each blog. Is there a point of contact for the blog itself? You can start by asking them to take it down… a lot of them are in a foreign language though, and very hard to get in contact with. There is a function you might want to employ that stops people from right-clicking on your blog, so they can't save your photos, and they can't cut and paste your copy. Not much help if they've got it RSSed into a reader though. Worth a try, maybe?
Melissa says
March 14, 2012 at 9:34 amI think that's a good idea. I see so many people using images from places like Pinterest and crediting it with 'Pinterest' and then even modifying the images. Sure – most people might not mind if it's not for profit, but some will…
Veggie Mama says
March 14, 2012 at 9:37 amOf course they will! Especially if they find out. While not everyone will stop, at least I'm spreading the message 🙂
Felicity says
March 14, 2012 at 10:45 amThanks so much for sharing this succinctly.
I always wondered about the copyright status and this cleared it up brilliantly.
Karen at MomAgain@40 says
March 14, 2012 at 11:07 amThanks for a very insightful blog post! Always great to be reminded of it again!
Cat says
March 14, 2012 at 11:10 amThis is ace Stacey, thank you! I don't put an image up unless I can trace it back to the original source cos of “good manners” but the legal part scares me enough for images to no longer be compulsory for me. Much food for thought lovely. Xxx
Npamz says
March 14, 2012 at 11:27 amMost excellent post and very much a well crafted expose' on copyright and the legalities. Thanks a bundle.
Robert Dulaney says
March 14, 2012 at 4:37 pmsuch a good post! and i'm sure a ton of bloggers really don't know these basics! you're a saint! 🙂
Deb - home life simplified says
March 15, 2012 at 1:41 amExcellent post – thank you so much for sharing this here -I wish i could have come to the workshop. As an American I remember being so surprised to learn (after living here a while) that there was no freedom of speech here. Thanks for clarifying about defamation – not that I plan on anything ; ) but you really made it all clear to me now.
Veggie Mama says
March 15, 2012 at 1:42 amOh, fabulous! Please let me know if I can help in any other way.
Veggie Mama says
March 15, 2012 at 1:42 amA refresher never hurt anyone 🙂
Veggie Mama says
March 15, 2012 at 1:42 amYou're very welcome!
Veggie Mama says
March 15, 2012 at 1:43 amI know and that's what scares me! I hope it keeps some boys and girls out of trouble 🙂
Veggie Mama says
March 15, 2012 at 1:45 amhaha smartass or not it made me laugh!
Veggie Mama says
March 15, 2012 at 1:45 amMaybe next time!
Veggie Mama says
March 15, 2012 at 1:45 amYou are most welcome x
Veggie Mama says
March 15, 2012 at 1:46 amIt's incredible how many people think we have it. I guess we just watch too many American TV shows! We'll have people trying to plead the fifth next.
Veggie Mama says
March 15, 2012 at 1:47 amAhh gotta love yellow!
Journlaw says
March 16, 2012 at 4:48 amHi Stacey – thanks so much for mentioning my work in a great blog. Looking forward to reading more and sharing with my foodie daughter. My book 'Blogging and Tweeting Without Getting Sued' is now available in print and ebook. Your readers just need to Google it or 'journlaw' and they'll get the details. Cheers, Mark
Veggie Mama says
March 16, 2012 at 4:53 amHi Mark – thanks for stopping by! I've found it's become such an issue with bloggers now I had to say something. I am SO pleased you wrote your new book, and I'm off to buy it right now. Wonderful timing! Will let my readers know, and I hope your daughter finds some foodie inspiration 🙂
Dorothy @ Singular Insanity says
March 16, 2012 at 11:31 amSo is it defamation when you tell the truth about someone? A fact that they're trying to hide?
Veggie Mama says
March 16, 2012 at 11:40 amNo. You're just bringing their reputation down to its true level. They can still sue you, but truth is a pretty handy defence. You do need to be able to prove it in court though.
Dorothy @ Singular Insanity says
March 16, 2012 at 12:14 pmThe evidence is already in court documents and police records.
Veggie Mama says
March 17, 2012 at 6:12 amwell it's entirely up to you if you want to put this sort of thing on a public blog. You must write fairly and factually, and not present your opinion as fact. It must be a balanced account and under no circumstances should you be malicious, or have an ulterior motive for making it public. Once you do it solely to hurt the other person for your own gain, you lose a great deal of defence in court. Presenting facts and your feelings and opinions based on those facts clearly and honestly can be defensible.
Laura @ SpottyOwlDesign says
March 17, 2012 at 7:43 amBrilliant post. The other scary thing to note with defamation etc is that you're bound by the law where the offense occurs so if I'm sitting in an Internet cafe in Singapore and read a blog post that defames me, technically I had an option to pursue it through the Singaporean courts and Singaporean law rather than come back to Australia and deal with it there. So as international publishers we have to be super aware of not just australian law but the law on other countries.
Dorothy @ Singular Insanity says
March 17, 2012 at 9:25 amThanks, Stacey. That’s what I thought.
Nikki Parkinson says
March 17, 2012 at 9:59 amYou are so smart and beautiful. Can you answer me if the defamation laws are still different in different states? Truth used to be a defence in Victoria but not here in QLD – is that still the go? And how does that work if you publish across borders – ie, through blogging? xx
Nikki Parkinson says
March 17, 2012 at 10:00 amAgree – some posts of late have scared the socks off me!
Nikki Parkinson says
March 17, 2012 at 10:04 amMaxabella, I've been given this great link which helps you to find the original sources of images: http://jarred.github.com/src-img/ – you just drag it to the bookmarks bar in your browser, then click it when you're on a page with the image you want to track down. Too easy!
Veggie Mama says
March 17, 2012 at 10:14 amWe have uniform laws now, so truth is a defense in all states. Within-Australia borders are all similar. Defamation occurs where it is read/downloaded, not where it is written. So we must be aware we may be defaming in other countries. Given we're one of the strictest countries, it's not usually us that is in danger xx
Alice says
March 17, 2012 at 12:12 pmStacey you did an awesome job presenting this to us last weekend! So glad I was there 🙂
Nikki Parkinson says
March 17, 2012 at 12:31 pmGood to know – and I wish all laws and regulations were the same throughout Australia!
Tabitha says
March 18, 2012 at 10:10 amHi Stacey,
Such an informative and education post! Definitely need to spread the word among the blogging community. I actually work at the same university as Prof Mark Pearson and am going to a special session he is holding for all of our marketing staff – so I am looking forward to that even more now!
Tabitha
http://www.tfortabitha.com
Veggie Mama says
March 19, 2012 at 3:45 amThank you so much! I hope you got something out of it.
Veggie Mama says
March 19, 2012 at 3:46 amOh how easy would that make everything! Idiots.
Veggie Mama says
March 19, 2012 at 3:46 amOoh you lucky thing! He is a wealth of information. Make sure you soak up all you can xx
sarahbraaksma says
March 21, 2012 at 8:01 amah this is great.. I feel I have a whole lot of pictures I need to go back and post their source.. I've really only just become aware of all this legal stuff.. eek!!
MummyK says
March 21, 2012 at 11:28 pmThanks for this, well done in making it understandable! Even us journos need refreshers too.
Veggie Mama says
March 22, 2012 at 3:18 amhahah everyone gets that feeling! I want to delete my tumblr and clean up my Pinterest boards (that one I will do)… when you know better you do better xx
Veggie Mama says
March 22, 2012 at 3:18 amDon't we!
Melissa Walker Horn says
March 22, 2012 at 10:36 amOk, I have a question for you. How do you stop being a smartie pants because you know so much now after this informative article and the even better workshop talk? Hmmmmm…?
😉
Veggie Mama says
March 22, 2012 at 11:40 pmHaha I stop when people ask me questions I don't know the answer to! Like now!
weebirdy says
April 20, 2012 at 2:53 pmJust found this post – thank you. That book has just come out, hasn't it? I must get a copy. xx