Kickstarter New Terms of Service

Kickstarter Logo

Kickstarter Logo

In case you didn’t hear, Kickstarter announced that it’s revising its terms of service. The changes will apply to projects launched on or after October 19, 2014.

Kickstarter is a crowdfunding platform. People can launch a project they need funding for and backers and pledge a specified amount of money to support it in exchange for a benefit listed on the project’s page. The creator has to state their fundraising goal and deadline on their project page and backers only have to pay if the goal amount is reached.

Kickstarter provides a forum for people needing funding and potential backers to find each other. They don’t really get involved beyond that. Kickstarter makes to guarantee that the creator will follow through on their obligations to complete the project and they stay out of disputes between creators and backers except to assist law enforcement with fraud investigations.

In the new terms of service, Kickstarter still doesn’t get involved in disputes but they provide guidelines regarding what should happen if a creator can’t complete their obligations. The new terms say, “If a creator is unable to complete their project and fulfill rewards, they’ve failed to live up to the basic obligations of this agreement. To right this, they must make every reasonable effort to find another way of bringing the project to the best possible conclusion for backers.”

When a project is funded, it creates a contract between the creator and backers. If the creator doesn’t perform as promised, they’ve breached the contract and must amend the wrong. I think these new terms are an acknowledgement that Kickstarter realizes their users are beginners in the business world, and so it’s helpful to provide this additional information and guidance for situations when a creator can’t follow through after being funded.

Hat tip to Kickstarter for replacing the legalese in the previous terms of service with everyday language. The new verbiage and the layout of the terms are much more user-friendly and appropriate for your audience. I wish more sites were like this.

If you’re interested in talking more about the legalities of using Kickstarter or website terms of service, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

The Real Cost of a Social Media Misstep

Money by Andrew Magill from Flickr (Creative Commons License)

Money by Andrew Magill from Flickr (Creative Commons License)

I was talking with some non-lawyer entrepreneurs lately, and I asked them what they thought would be the worst case scenario if their company broke the law via their social media, and they both responded that they would have to take responsibility for their mistake, apologize, and do some damage control. While I appreciate that these business owners appeared to have integrity and good intentions, I internally cringed that they both assumed that saying, “I’m sorry,” should be enough to fix a problem.

I want to share some numbers for the costs a business could easily face if they violate a law with their online posts.

Trademark Infringement – Cost of Rebranding
Think about how much time and money you’ve spent selecting the name for your business or product, your logos, your slogans, your domain, and your website. Now, how would you feel if you had to do it all again? That’s what could happen if you select a name for your business or product that’s already been registered by someone else in your industry. In the best case scenario, they’ll send a cease and desist letter and demand that you rebrand. In the worst case scenario, they’ll sue you for infringement, and you could be spending tens of thousands of dollars in legal fees and fines.

This is why I suggest companies check the U.S. Patent and Trademark Database for registered trademarks to verify the name or slogan they want to use hasn’t been claimed by someone else.   I’m also an advocate of registering your trademark as soon as you can afford it, so no one can restrict your use of your own name or steal it from you.

Illegal Social Media Policy – at least $10,000
Every company needs a social media policy, but employers need to understand that a federal law called the National Labor Relations Act (NLRA) that protect union activities also apply to employees talking about their work – even in public online forums. If you fire an employee for violating the company social media policy and it turns out your policy violates the NLRA, you could be ordered by the National Labor Relations Board (NLRB) to pay the ex-employee back wages, damages, and offer them their job back. My friend who works on these cases says if you have to pay the ex-employee $10,000, you got off easy.

Copyright Infringement – $150,000 per Work Copied
Many business owners don’t understand that they can’t use any image they find via a Google Image search. There are even marketing “professionals” who will tell you that you can use any image you find online as long as you give an attribution and a link to the original. Both of these are excellent ways to commit copyright infringement. And photographers are becoming more savvy about protecting their rights so if you use their work they may send you a bill or a lawsuit instead of a cease and desist letter or a takedown notice. In the worst case scenario, you may face a lawsuit for $150,000 per image you used without permission.

Be careful if you outsource your content creation that your contracts clear state that the writer or artist who creates your content also indemnifies you if you are ever accused of copyright infringement because of something they created for your site or posted to your social media.

Defamation – $2,500,000
Defamation generally requires making a false statement about a person to a third party that hurts the person’s reputation. When I do talks about social media horror stories, I talk about a case where a blogger was sued for defamation because of one blog post and was ordered to pay him $2.5 million. 1 blog post. $2.5 million. (The case is currently up on appeal but I don’t think it looks good for her.) This is when little words matter because it’s easy to think you’re stating an opinion but your phrasing creates a statement of a fact – and if it’s a lie, it could be defamatory. Think before you post and check your sources.

ruthcover smallerPlease note, these numbers do not include legal fees you could face in addition to damages if you’re sued because of your social media posts. The legal issues listed above only scratches the surface of what wrongs a person or company can commit online. The good news is most of these problems are preventable with education and diligence. I strongly recommend you stay abreast of what laws apply to your social media postings and developments in this area of law.

If you need a legal resource for laymen on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to blogging and social media. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How the Digital Millennium Copyright Act (DMCA) Works

Hueco Tanks Lightening Storm by Dana Le from Flickr (Creative Commons License)

Hueco Tanks Lightening Storm by Dana Le from Flickr (Creative Commons License)

I got a message from a photographer friend who said a company is using many photographers’ work on their site without permission. He investigated the company’s copyright policy and was astonished that they make people provide six things to get an image removed. He sent me the link. Here’s what they require:

  1. Information reasonably sufficient to permit us to contact the complaining party (e.g., address, telephone number and email address);
  2. A physical or electronic signature of the person authorized to act on behalf of the owner of the copyrighted work(s) that is/are alleged to have been infringed;
  3. An identification of the copyrighted work(s) you claim is/are being infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  4. Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;
  5. A statement that the complaining party has a good faith belief that use of the material is unauthorized; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

When I saw the list, I smiled. This is how the Digital Millennium Copyright Act (DMCA) works. When you send a DMCA takedown notice, you have to tell the web host who you are, which of your photos is being used, where they can find the image on the alleged copyright infringer’s site, and you have to promise that you’re telling the truth. If you provide this information, they are required to remove the image from the alleged infringer’s site.

This is what disturbs me about this situation. This company uses many images on its site. As an outsider looking in, it appears that they at least suspect that infringement is happening and their way to dealing with it to remove the infringing images when they’re notified. I would not be surprised to learn that this company outsources their content creation so they wouldn’t know if their use of an image was violating someone’s copyright. I hope they have a policy to fire contractors with a track record of copyright infringement.

Sending a DMCA takedown notice is only one option when a photographer suspects their work is being used without permission. Some photographers opt to send a bill or file a lawsuit against them instead.

If you want a resource that explains the legalities of copyright and social media in plain English, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Questions People Ask About the Law, Photos, Sex Tapes, and Revenge Porn

Talk Shows on Mute by Katie Tegtmeyer from Flickr (Creative Commons License)

Talk Shows on Mute by Katie Tegtmeyer from Flickr (Creative Commons License)

The movie Sex Tape comes out this week. The previews look dumb, but I want to see it to examine the story from a legal perspective.

I’ve done a fair amount of research and writing about cyber harassment and “revenge porn.” I’m generally an advocate of personal responsibility and people not acting like asses, but judging by the terms people search for and end up on my site, a lot of people don’t share my views.

Here is a sample of the terms people have searched for and ended up on my site just in the last ninety days. (I corrected the spelling errors unless they were too funny not to leave in.)

I get a lot of hits on my site when people search for terms like this:

  • Can someone post your picture without permission
  • Can I sue someone for posting pictures of me online
  • If someone sends you a photo via phone can you post it online
  • Is it illegal to take a picture of someone and post it on the internet
  • Sex tape invasion of privacy
  • Expectation of privacy in sex stores
  • How to get a sex tape of you removed from a website?

I feel bad for these people:

  • What if someone wants to post your explicit pictures
  • Someone is threatening to put me on a porn site
  • My daughter videotaped herself doing some sexual things and now someone is threatening to put it on the internet what now
  • Someone posted nude pics of me, what type of lawyer do I need
  • Girlfriend took illegal pictures and put them on Facebook
  • If a site posts my porn video can I make them take it down
  • My ex-husband has intimate pictures of me what can I do
  • What is the legal steps you can take when someone is distributing a sex tape of you without your consent
  • My ex-boyfriend has nude pics of me. Can I legally do anything to make him delete them?
  • Can I get someone arrested for posting nude pictures of me online
  • Can you get someone arrested for distributing a sex tape?
  • Can you be classified as a sex offender for posting nudes on Facebook Arizona

These people kind of scare me because they either sound vindictive or clueless:

  • Wapsites to post my nude pics
  • Took photos of my ex naked while she was passed out
  • Can I post pics of my ex online
  • Can I post a naked pic on the internet without the consent of that person
  • If a person uploads sex videos in prone sites how much money will he get
  • Do you allow people to post nude pictures on your site I broke up with a guy
  • If u put wife nude video with name on internet can u get in trouble
  • Is giving out naked pictures of your ex- girlfriend breaking the law
  • Can you send xrated pics to get back at someone
  • Is it illegal to take a picture of someone and caption it with a degrading comment

These are just funny:

  • Can you sue a person for taking a photo of your butt in public
  • My ex sent me nude pics can I prosicute her
  • What to do to keep ur man after he saw ur nude pics sent to an ex
  • My boyfriend exposed my nude pictures. I will arrest him
  • Can you take pictures of people having public sex?
  • How to legally make fun of people on the internet
  • Why do people post stupid things online

Anyone who’s a regular reader knows that I constantly say “Think before you post.” When it comes to taking explicit photos or videos with your significant other, don’t do it unless you can handle the responsibility and have enough integrity to keep your private life private.

If you feel you’ve been the victim of a cyber-crime, contact the police in your community. If you want to chat about other issues related to cyberharassment and revenge porn, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Yes, Personal Facebook Posts can be Harassment

Hack de overheid by Sebastiaan ter Burg from Flickr (Creative Commons License)

Hack de overheid by Sebastiaan ter Burg from Flickr (Creative Commons License)

A friend recently directed me to a post on Facebook that included a question about the following:

I have a friend who is having some legal problems that started from a facebook post called “harrassment by communication” for something that was written on their own PERSONAL facebook page. 

This is my interpretation of this statement: This person’s friend is being a accused of wrongdoing because of a post Friend made on Friend’s personal Facebook page.

That can absolutely happen. If you talk about another person on your social media profile, the fact that it was made on your page and not the target’s does not shield you from the repercussions. It would be similar if you were yelling about a person while standing on your own front law vs a street corner. You’re still making a statement about a person. The fact that you have more control over your lawn than a public street corner doesn’t change whether the content of your statement is illegal.

It would a different situation if we were talking about a statement Friend made in Friend’s private diary they keep in their bedside table. In that situation, I wouldn’t expect anyone to find out what Friend wrote as long as he/she kept it private. There is no expectation of privacy in anything anyone posts on social media, regardless of your privacy settings. This is why I tell everyone to treat every post on social media as if it’s going to end up on a billboard or the front page of the newspaper.

Arizona has criminal laws against cyberharassment and harassment. They both involve communicating with a person with the intent to harass them or with the knowledge that the person was being harassed. The laws do not put limits on from where that harassment can occur. Both crimes are Class 1 misdemeanors, punishable by up to 6 months in jail and up to a $2,500 fine.

Additionally, I would expect the terms of service for every social media platform to include a provision that forbids users to the site to harass other users and doing so could result in the suspension or termination of the offender’s account.

Carter Law Firm's Postcards

Carter Law Firm’s Postcards

I have no idea if Friend referenced above did anything wrong or if he/she is merely being accused of doing something wrong. I can only say that Friend may have committed some type of harassment depending on the facts of the situation. The fact that they made the post in question from their personal page does nothing to protect them from the legal implications of their statements. The First Amendment does not shield you from the criminal consequences of your actions and there is no expectation of privacy on any social media platform.

Think before you post – because the consequences of your speech can be severe.

On the flip side, I tell people if they are being harassed online to document all the instances and take screenshots of all the offending posts – particularly in situations where the person who is making the statements are doing so from their own profile because you never know if/when they might re-think their actions and delete them.

If you need a resource that explains the legal dos and don’ts of social media in plain English, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you need a resource to help protect yourself against harassment and cyberharassment, I recommend The Gift of Fear by Gavin de Becker.

If you want to chat more about freedom of speech and cyberharassment, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How to be Anonymous Online – John Huppenthal Shows What Not to Do

Anonymous by Thomas Leth-Olsen from Flickr (Creative Commons License)

Anonymous by Thomas Leth-Olsen from Flickr (Creative Commons License)

It recently came to light that John Huppenthal, Arizona Superintendent of Public Instruction, has been using various aliases to post comments on several blogs for years. Some of his comments have been described as racist and disparaging towards welfare recipients.  There were also times that he used his alias to write comments that endorsing himself and his position.

John Huppenthal, Image from the Arizona State Legislature

John Huppenthal, Image from the Arizona State Legislature

Allegedly Huppenthal said he used an alias to participate in the free exchange of ideas. To a degree, I get that. Before the internet, the best way to be heard was to write a letter to the editor. I knew of at least one public official who used an alias to express ideas as an individual rather than as a person holding political office. I also suspect that if this person was unmasked it would be a non-issue for them. (They also weren’t sending in letters dripping with discriminatory speech. They were just expressing themselves as a concerned citizen.)

So what can we learn from John Huppenthal’s mistakes about being anonymous on the internet . . .

Use an IP Address that’s Hard to Trace to You
According to the reports, Huppenthal made several posts from the Arizona Department of Education. If you want to be anonymous, make it hard to for people to track your internet connection. Don’t use the internet connection at work, home, or your personal hotspot. Use the public internet at a coffee shop, hotel, or library.

Protect Your True Identity
If you want to be anonymous online, take steps to protect your identity. Besides using a public internet source, create a dummy email address for your anonymous posts. Choose usernames that don’t reveal anything related to who you are, your job, your location, or your hobbies. Don’t use photos of yourself as your avatar.. That’s partially how Shashank Tripathi got caught as the man behind the fake tweets about Hurricane Sandy.

Carter Law Firm's Postcards

Carter Law Firm’s Postcards

Don’t Endorse Yourself
It’s one thing to use an alias to participate in public discourse and another to create a fake persona to endorse yourself when you’re running for or holding political office. If you want to respond to your critics, do it as yourself. It’s classier and it shows you have integrity.

Expect to be Unmasked
I frequently tell people, “Don’t post anything online that you wouldn’t put on the front page of the newspaper.” This includes everything you post anonymously. Act as if everyone you care about is going to see what you posted with your name and picture attached to it. That way if your identity is ever revealed, you can own it without any personal issues.

If you have aspirations of being or remaining anonymous online, this video may help.

Huppenthal said he won’t resign over these posts and he’s currently up for re-election. We’ll see if the revelation of this behavior will impact his career. If nothing else, he’s the living embodiment of the risks that come with an attempt to be anonymous and the mistakes you can make when you think no one knows what you’re saying.

If you’re interested in learning more about how to be anonymous online, please check out my books, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed and The Legal Side of Blogging for Lawyers. The latter includes an afterword by an anonymous award-winning legal blogger The Namby Pamby about the challenges he faces.

If you want to chat with me about anonymous speech on the internet, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How to Avoid Being the Next Social Media Horror Story

Be A Social Media Super Hero for your Company - "Super Heros" by 5chw4r7z from Flickr (Creative Commons License)

Be A Social Media Super Hero for your Company – “Super Heros” by 5chw4r7z from Flickr (Creative Commons License)

I had the pleasure of presenting Social Media Horror Stories (and How to Avoid the Same Fate) at the Arizona Technology Council Lunch and Learn this week.  For those of you who weren’t there, I got to tell the stories of major missteps companies and individuals have committed with their social media activities and how to avoid the same mistakes. In every situation, the problems could have been avoided or mitigated with proper education, forethought, and applying common sense.

This is my recommended follow-up plan for attendees:

Register Your Trademarks
To avoid problems with your competition, register the name of your company, products, blog, logo, and/or tagline with the U.S. Patent and Trademark Office. Without registration, the law only protects your right to use your trademarks in your established geographic market (which can be challenging to discern when your business is 100% online). You don’t want to find yourself in the Burger King situation where your market is limited or the Turner Barr situation where your business is essentially shut down because someone else registered your mark.

Before you launch your next company, product, or marketing campaign, be sure to check the Trademark Office’s database to make sure that someone else doesn’t already have the exclusive rights to use your desired trademark.

Check Your Contracts
If you outsource any of your content creation or marketing activities, review your contracts carefully. Look for information about who owns the social media accounts and any content created on your behalf. Also look for provisions that address potential problems and whether you will be indemnified if you’re sued or get in trouble because of something a third party did on your behalf.

Remember that website terms of service are also contracts. Make sure you understand the implications of using a social media platform or web-based service. Your site may also have terms of service that manage your relationships with your users. Make sure they’ve been written to suit your needs.

Be Careful About Copyrights
When a person owns a copyright in text or an image, they have the exclusive right to control where they work is copied, distributed, and displayed. If you want to use their work, you often need to obtain permission or risk being accused of copyright infringement.  I frequently see people pulling images from search engine results without considering the artist’s rights. Many people think they can use whatever they want as long as they give an attribution and link back to the original, and that’s just not true. If you’re looking for images for your site, consider using Creative Commons. I always use images that come with the license that allows me to modify and commercialize the artist’s work.

When it comes to your own copyrights, decide in advance how you want to react when someone steals your work and plan accordingly.

Check Your Social Media Policy
I’m an advocate for the idea that companies should generally leave their employees alone when they’re on their own time, including what they do on social media. However, I’m also a huge proponent of the idea that every company needs a social media policy. Employees need to understand what their dos and don’ts are when it comes to their personal profiles and blogs, and employers need to understand that their social media policy needs to comply with the National Labor Relations Act. If your policy prohibits employees from saying anything damaging about the company online, it’s likely illegal and if you fire someone for violating an illegal policy, you could easily face tens of thousands of dollars in legal fees and damages. This is an area of law that is still developing, so please have  lawyer help you write your policy so it complies with the law.

Review Your Crisis Response Plan
For most companies, the question isn’t if it will face a crisis, but when. Every company should have plans in place for dealing with expected problems, including pre-writing content for the media and social media, so what when an problem occurs, everyone knows what their role and the protocol that everyone will be following. When you’re having your planning sessions, it’s a good idea to have your legal counsel present to assist from a legal perspective.

If you want a resource for you or your staff regarding the legalities of social media, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you’re interested in guerilla marketing, my book on Flash Mob Law will be available on Amazon in June 2014.

If you want to talk more about social media law, you can connected with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Arizona’s New Revenge Porn Law

8/52 My Shadow by Scarleth Marie from Flickr (Creative Commons License)

8/52 My Shadow by Scarleth Marie from Flickr (Creative Commons License)

Governor Brewer recently signed HB 2515, which made “revenge porn” a felony in Arizona. The official name for this law will be Unlawful Distribution of Private Images and it will be added to the Arizona criminal code as Arizona Revised Statute § 13-1425.

This new law, “Prohibits a person from intentionally disclosing, displaying, distributing, publishing, advertising or offering a photograph, videotape, film or digital recording of a person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.” It also amends the domestic violence law (A.R.S. § 13-3601) by stating that revenge porn can be a type of domestic violence.

If you are arrested for violating this law, you will be charged with a Class 5 Felony (punishable by at least 6 months’ imprisonment and up to $150,000 fine), unless the person in the image or videos is recognizable, then you’ll be charged with a Class 4 Felony (punishable by at least 1 year in jail and up to $150,000 fine). When I first saw these punishments, I thought they were overly harsh, but then I noted that these are the same penalties for people who are found guilty of voyeurism in Arizona.

This law goes into effect on July 24, 2014. Arizona law enforcement has until then to develop their policies regarding how these crimes will be investigated and train their staff. Arizona already has a law against cyberharassment, so I suspect the policy for the new law will be similar to the procedures they have in place for this.

These are some of my thoughts about this new law:

  • I suspect the distribution of revenge porn applies to sending images or videos from person-to-person via text or email as well as widespread postings on websites. I can easily see a group of high school kids being accused of violating this law for passing around a naked selfie of one of their classmates that the victim meant for only their significant other to see. It could also be a felony just to show the image to one person.
  • Did you notice that the law applies to “offering” an image or video? I think that means you could be guilty even if you just offer to share someone else’s naked photo without the person’s consent, even if the potential recipient declines. These situations would probably be hard to prove unless the conversation was recorded or documented via text messages or email.

I’m curious to see how this law will impact existing revenge porn. If someone posted a photo of you on a revenge porn site this month and it’s still up when the law goes into effect in July, can the victim turn the alleged perpetrator in at that time with the claim that by staying on the internet, the crime is ongoing? Or will the victim have to wait until someone posts or sends the photo/video again after the law goes into effect to file a claim?

My rule of thumb is, “Think before you post.” Once an image or a message is sent, you can never fully take it back. Even if you have a revenge porn claim and the person is justly prosecuted, that image of you is still out there and you have no control over who’s seen it and it’s hard to chase down every place it might be posted to try to get it removed.

(Note: This video was made in March 2013, before the revenge porn law was passed, and not every state has a specific law about revenge porn.)

If you think you’ve been a victim of cyberharassment or revenge porn, please contact your local law enforcement agency.

If you want to learn more about revenge porn, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It has an entire chapter dedicated to invasion of privacy. You can connected with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

New Developments in the Blogger-Media Debate

Kelli Johnson Orioles Media Pass by Keith Allison from Flickr (Creative Commons License)

Kelli Johnson Orioles Media Pass by Keith Allison from Flickr (Creative Commons License)

The debate over whether bloggers are journalists or members of the media continues. This has been an issue since the inception of blogging and it’s probably going to be an ongoing issue and here’s why – most laws that apply to journalists (like the shield laws) are state-level laws. They’re generally similar but it comes down to how each law was written to determine whether bloggers are journalists in a specific situation. And unless a state revises its laws to specifically address whether bloggers can be journalists, we have to wait until there’s a problem and the blogger who claims to be protected the same as a journalist challenges a situation where they’ve been denied that right.

So far, the courts in California and New Hampshire have said that bloggers can be journalists under those states’ shield laws and the courts in Oregon and Illinois have said that they’re not based on how those states’ laws are worded and the specifics of those cases. I believe that bloggers should be treated the same as journalists under the law when the bloggers are engaged in the same activities. With so many publications becoming only available in digital formats and many legit respected niche blogs being created, it would be foolish to try to categorize as a journalist or a blogger when in essence it’s their activities that matter more than name of the outlet where their work appears.

Here are some recent developments in the blogger/journalist debate:

Florida
Florida’s defamation law says you must give a media outlet five days’ notice before filing a defamation lawsuit against them. Florida businessman Christopher Comins sued blogger Matthew Frederick VanVoorhis for defamation and lost because VanVoorhis successfully argued that blogs are part of the media and therefore the case had to be thrown out because Comins failed to give him five days’ notice about the lawsuit.

I was impressed by how well the court articulated the role of bloggers in news reporting and public commentary: “The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa.”

I was also pleased to see that the court added that not all blogs and bloggers are protected under the law in question. I think that would be overreaching. You can read the full case here. Thanks for posting it Techdirt.

U.S. Senate
SCOTUSblog is generally regarded as a go-to place for news from the U.S. Supreme Court. They’re the main blog I follow via Twitter for updates on rulings. (Did I mention they’ve won a Peabody Award for excellence in electronic media?) Lyle Denniston writes for SCOTUSblog and had a press pass for the Senate Press Gallery. Historically the U.S. Supreme Court recognizes those credentials. However, they said they’d have to review their credentialing policy when he tried to use it at the Supreme Court. (SCOTUSblog writers can get in to Supreme Court proceedings by requesting a public seat.)

Denniston was recently informed that his press pass for the Senate Press Gallery would not be renewed. Attorney Tom Goldstein, founder of SCOTUSblog, said he intends to appeal the decision, and if it’s denied, he’s going to file a lawsuit.

I hope SCOTUSblog doesn’t have to litigate this issue but I’m glad they’re willing to. When I first read this story, my reaction was they were being denied a press pass because someone at the Senate or the Supreme Court doesn’t like them and is trying to use semantics to keep them out. This is going to be a fun situation to watch and an issue worth keeping an eye on in general.

If you want to know more about blogger rights, I strongly recommend two of my books:

If you want to talk more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. Please subscribe to the Carter Law Firm monthly newsletter and visit my homepage for more information about Carter Law Firm.

Hat tip to Kevin O’Keefe.

What was up with General Mills’ Legal Terms?

General Mills Kids Breakfast Cereals by Mike Mozart from Flickr (Creative Commons License)

General Mills Kids Breakfast Cereals by Mike Mozart from Flickr (Creative Commons License)

I got lots of messages last week when it came out that General Mills’ legal terms said that if you downloaded their coupons, connected with them on social media, entered a contest, or purchased any of their products that you agreed to resolve all disputes with the company through binding arbitration or informal negotiation via email.

And everybody lost their minds.

I can understand requiring arbitration for disputes related to contests. I write terms of service for websites all the time and I also include a dispute resolution where my client specifies where, how, and using which state’s law problems will be resolved. I would never tell a client to write their terms in a way that dictates how they’re going to resolve problems that are not related to a website.

I think it’s ridiculous that they’d even try to tell consumers that making a purchase forces them to resolve disputes in arbitration unless those provisions are available on the packaging and in print that might make a consumer take notice. I’ve never thought to examine a cereal box for contract terms.

Thankfully General Mills saw the light and reversed its decision and voided the offensive terms this past Saturday. In a blog post, General Mills spokesperson Kirstie Foster wrote, “No one is precluded from suing us by purchasing our products at a store, and no one is precluded from suing us when they ‘like’ one of our Facebook pages.”

General Mills still supports arbitration for resolving disputes and I understand why. It can be a faster and more cost-effective way to resolve problems. However, some disputes are better left to litigation where there is the option to pursue a class-action lawsuit when the situation warrants it.

We agree to contract terms all the time. Every time we click the “I agree” button for an online service or to create an account on a social media platform, we are agreeing to the terms of the contract (even if we don’t read the terms). The next time you go to a concert or a professional sporting event, flip over your ticket and read the fine print on the back. That’s a contract. I have no problem with these contracts as long as they make sense for the situation and don’t overreach into scenarios where it would be unreasonable for the terms to extend.

My Neighborhood Whataburger

My Neighborhood Whataburger

For example, I recently heard that there was a sign at a Whataburger restaurant that put consumers on notice that by eating in the restaurant, they agreed to resolve all disputes related to their dining experience via arbitration. I tried to confirm this but I didn’t see such a sign in my neighborhood Whataburger. I visited their website and didn’t see such a provision; however, I was perturbed to see terms and conditions that said:

By giving us permission to use your post or tweet, you agree that we may, at our discretion, use your real or social media user name and the content of your post or tweet (including all accompanying images) on our website to promote our company, products and services for such time period as we wish. You give us the right to edit your post or tweet for brevity, clarity and the like and to modify any image in any manner we deem necessary to use it on our website. You will not have the advance right to review or approve what we post on our website….You will not receive any compensation for granting us the above rights. We agree that you may withdraw the permission you have given us at any time by sending us an email at customerrelations@wbhq.com.

Whataburger’s Facebook page says they can use anything you post on their page but I didn’t see any similar verbiage on their Twitter profile. I think they’re trying to set themselves up so they can use anything you post about the company on social media, including editing it which I’m not too keen about the verbiage they used.

This is a topic that is worth watching to see what becomes the norm in social media marketing. I f you want to talk more about terms of service or social media law, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. Please subscribe to the Carter Law Firm monthly newsletter and visit my homepage for more information about Carter Law Firm.