Courts Split on Shield Laws

February 2, 2012 by 1 Comment

Interviewing David Bornstein by Global X

There is an ongoing debate in the state courts about whether bloggers can be protected by the “shield laws.” These are the laws that state that a reporter does not have to reveal the identity of an anonymous news source. The purpose of these laws is to encourage the dissemination of information.

Shield laws are enacted at the state level and are in place in 40 of the 50 States, including Arizona. If you’re a blogger who is sued and you want to use a shield law to protect your source, you usually have to rely on the shield law in the state where you’re being sued, which is not necessarily the state where you live.

So far, the courts in California and New Hampshire ruled that bloggers are protected by their States’ shield laws and the courts in Oregon and Illinois ruled that bloggers are not protected by their States’ shield laws. The verbiage for each State’s shield law is different, and some laws may be worded so narrowly that a court could fairly say that the law cannot apply to bloggers. It is interesting to note that the judge in the Illinois case ruled that bloggers aren’t protected by the shield laws in Illinois or California, and this ruling came down after a California court held that bloggers are protected by the California shield law. We’ll see if the blogger in the Illinois case appeals that ruling.

In general, if you are a blogger who engages in the same activities as a journalist, then you should be protected by the shield laws the same as a journalist. If a person knew of insider trading at a Fortune 500 Company and he gave interviews to the Wall Street Journal and a blogger with a verbal agreement that the writers would not reveal the source of the information, why should a shield law protect the writer from the Wall Street Journal and not the blogger just because the blogger self-publishes?

The courts should not make blanket judgments about whether all bloggers are protected by a shield law. Instead they should make a case-by-case analysis to see if a particular qualifies for protection. Many of the shield laws require regular publication. Based on that requirement, a blogger who only publishes sporadically may not be protected by a shield law.

Arizona has a shield law that states: “A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.” I could see a blogger arguing that their blog is reportorial work. The challenge would be convincing a judge or jury that the law should extend to electronic publications, and not just newspapers, TV, and radio.

A court may accept an argument that you’ve made a commitment to protect the anonymity of your sources. There was a case in Maryland in 2009 where a judge did not force a website to reveal the identities of anonymous commenters unless the plaintiff provided evidence to support its claims first. If you have a policy on your blog that states you’ll protect contributors’ anonymity, a court consider that in deciding whether you have to disclose your information source.

The debate over whether bloggers qualify as journalists is not going away anytime soon, and since this is a state law issue, we may remain in this situation where some states protect bloggers under the shield law and others do not. Given that bloggers are accessible everywhere, this issue is likely to get more complicated in the future.

Filed Under: Legalities of Blogging Tagged With: , , , , , , , , ,

Bloggers Beware: Lessons from the Crystal Cox Case

January 25, 2012 by 3 Comments
92/365: Done? by PlayfulLibrarian

92/365: Done? by PlayfulLibrarian

This post was originally published on The Undeniable Ruth in December 2011. 

Many of us got into blogging because we like having a proverbial soapbox we can jump on to share our thoughts with the universe. The recent Crystal Cox case has made me wonder how many bloggers know the legal risk they take when they share their views.

For those of you who missed it, Crystal Cox is an “investigative blogger” in Montana who writes a blog called Bankruptcy Corruption. In one of her posts, she called Kevin Padrick, an attorney in Oregon, “a thug, a thief, and a liar.” Padrick sued Cox for defamation and won . . . $2.5 million!

The interesting thing for bloggers to note is that Cox lives and writes in Montana but she was sued in Oregon and Oregon law applied to the case.

If you write about other people, you open yourself up to the possibility of being sued for defamation or invasion of privacy. These cases are generally based on state laws. The good news is that there isn’t much variation between the laws. The bad news is that there are exceptions.

The really bad news is that the person who claims to have been injured by your blog gets to sue you in the state where they were injured, which is usually their home state. And it’s their home state law that applies. So, if you’re a blogger in Mississippi, and you write about someone in Alaska, and they sue you for defamation, you have to go to Alaska to defend yourself and hire an attorney who can defend you in Alaska. (Another lesson from the Crystal Cox case: don’t be your own attorney!)

Let’s look at the shield law, one of the laws Cox tried to use to defend herself. This is the law journalists invoke to prevent a court from forcing them to reveal an information source. There isn’t one national shield law. There are 40 different state shield laws, and some states don’t have a shield law. Cox tried to use the shield law to defend herself; and in another state, her argument may have held water. But unfortunately for her, the Oregon shield law specifically states that you can’t use the law as a defense in a civil defamation case.

Another challenge surrounding the legalities of blogging is that sometimes the laws are old, really old, as in the-internet-wasn’t-invented-when-the-law-was-written old. In a lot of these cases, the court has to decide how the laws apply to these new situations didn’t exist before we had the internet. You and the other side can propose your interpretation of the law, but there’s no guarantee that the court will accept your interpretation. And you might get really lucky and get a judge who barely knows how to turn on their computer and has no concept of what a blog is.

Someday the laws will be updated to account for the internet and blogging practices. Even when that happens, we will still have to be conscientious of the fact that each state has its own laws, and that we run the risk of being sued in any of the 50 states depending on who and what we write about.

Filed Under: Geek Law, Legalities of Blogging Tagged With: , , , , , , , ,

Flash Mobs Are Not Crimes

January 23, 2012 by 2 Comments
Improv AZ Apple Mob by Devon Christopher Adams

Improv AZ Apple Mob by Devon Christopher Adams

This post was originally published on The Undeniable Ruth in August 2011. 

It appears the term “flash mob” is being used inappropriately and its meaning is being overly broadened to include any group activity that is coordinated using social media. This year, there have been several robberies and assaults perpetrated by a group of people that appear (at least on the surface) to have been orchestrated via social media sites. The media has called them “flash mob crimes.” They make it sound like someone created a Facebook event that said, “Meet at Broadway and Main at 10pm. At exactly 10:03, we’re all going to run into the minimart, grab whatever we want, and run out.” That’s not a flash mob. That’s solicitation and possibly conspiracy. If the event actually occurs, it’s larceny and perhaps inciting a riot.

A flash mob is defined as “a group of people who assemble suddenly in a public place, perform an unusual and sometimes seemingly pointless act for a brief time, then disperse, often for the purposes of entertainment and/or satire.” Flash mobs have been occurring at least since the 1970’s. In recent years, they have been orchestrated via email and social media websites; however, that does not mean that every public group activity that is coordinated via social media is a flash mob.

Where's Waldo Flash Mob by Jeff Moriarty

Where's Waldo Flash Mob by Jeff Moriarty

Flash mobs are generally light-hearted innocuous fun.  People who participate in flash mobs ride public transportation without their pants; they welcome back strangers at the airport; they have fake battles between heroes and villains; and they stand frozen in place for short periods of time. Some protests and promotional events are referred to as “flash mobs,” but technically they’re not. And any event that has a criminal intent is definitely not a flash mob.

I give the media some leeway when it comes to coining terms; however, I was deeply disturbed when I saw a legal website refer to flash mobs as including criminal behavior. It suggests the writer did not do their research on this topic.

I love flash mobs. I have been participating in them and organizing them since 2009. When Improv AZ organizes a flash mob, we do thorough research on the potential legal implications of our event. I have attended an event with pages of statutes in my back pocket to ensure that we’re acting within the confines of the law. We are diligent to inform our participants in advance of their do’s and don’ts. We may push the envelope, but we never intend to cross the line. Most of our encounters with police involve them smiling or laughing at us. At the 2010 No Pants Ride after party, a Tempe police car stopped near us and an officer yelled out, “We had a briefing about you!” And then he went about his merry way, knowing we were harmless. A bit odd and rather goofy, but harmless.

Flash mobs are harmless, playful, and unexpected events. They are not criminal acts by design. Flash mobs and crimes are two completely different phenomena.  They do not exist on the same continuum.

In other news, the flash mob community needs to send a big “thank you” to Mayor Jackson and the city of Cleveland. Mayor Jackson recently vetoed a proposed law that would have made it illegal to use social media to coordinate a flash mob.  Thank you for protecting our First Amendment rights!

Filed Under: Featured Post, Flash Mob Law Tagged With: , , , , , , , , , , , , ,

Cyberbullying: What’s A Kid To Do

January 23, 2012 by Leave a Comment
Mine Isa by Johan Viirok

Mine Isa by Johan Viirok

This post was originally published on The Undeniable Ruth in September 2011.

Last week, the world was saddened to learn about the suicide of Jamey Rodemeyer. This 14 year-old was repeatedly bullied by his peers since the fifth grade. To the outside world, it seemed like this was a child with enough self-esteem to overcome this adversity. He had support from his therapist, social worker, friends, and family. He even made a video for the It Gets Better Project where he said, “All you have to do is hold your head up and you’ll go far.” All of this support wasn’t enough to keep Jamey from taking his own life.

According to reports, Jamey was repeated bullied at school and online. It’s not uncommon for victims of bullying to remain quiet because they are too ashamed to report that they are being victimized. Also, many teens feel a need to be independent and handle their problems on their own. They need to know that they have resources and recourse for addressing cyberbullying when it occurs.

Here are my top three tips for responding to cyberbullying.

1. Limit Who Has Access To You Online
Jamey received hateful messages via Formspring. In his It Gets Better video, he admitted it was a mistake to create a Formspring account. It allowed people to send him hateful messages anonymously. I wish Jamey knew he could have avoided this harassment. You can adjust your Formspring settings to disallow anonymous postings. It won’t stop all the harassing posts, but it will stop anyone who is too cowardly to let their name be seen. Likewise on Facebook, you can adjust your settings so certain people can’t see you at all or so that only your friends can send you messages or post on your wall. On Twitter, you can block people who are harassing you.

2. Report Abuse To The Website Where It Occurs
If you’re being harassed on a social media website, report it! Formspring, Twitter, and Facebook all have policies against using their sites to abuse other users. The same holds true for email providers. I suspect these site start by warning users who violate their terms of service, but they don’t change their behavior, they could have their account suspended.

3. Keep A Record Of The Abuse
I know it’s hard to do, but don’t delete abusive posts, emails or text messages. Take screenshots of posts online in case the bully deletes it later. It’s easier to prove you’re being abused when there’s hard evidence. It’s not a he said-she said situation at that point.

It takes a lot of courage to stand up for yourself and report abuse. I know it’s scary, but remember that reporting abuse is a sign of strength, not a sign of weakness.

Filed Under: Cyberbullying & Cyberharassment Tagged With: , , , , , , , ,

Social Media Policies That Every Company Needs

January 23, 2012 by Leave a Comment
Texting by Joi Ito

Texting by Joi Ito

This post was originally published on The Undeniable Ruth in January 2011. 

Last weekend I attended a talk by Kade Dworkin to business students on social media strategies for companies. Kade seems to have read every book on this topic and knows the heavy hitters in this area. He suggested that every company have two social media policies.

Social Media Policy for Employees
Is an employee allowed to say who their employer is on their blog? What about their Twitter profile? Is there anything wrong with an employee tweeting out, “Grrr…some days I hate my job” or “My clients are making me crazy?” If there are no rules about what employees can and can’t say online when they’re on their own time, you really can’t get mad at them for what they say, unless there is a blatant violation of client confidentiality or a disclosure of a trade secret. It’s disturbing that only 29% of employers have social media policies. Being active on social media sites is part of doing business today, and if you don’t have a social media policy for employees, you’re asking for trouble.

Social Media Crisis Response Policy
I had never heard this before, but it makes perfect sense. In the past, a company had more time before a bad review is disseminated via newspapers and word of mouth. Now, a bad review can be spread across the internet in a matter of minutes. While a company should hope and work towards providing exceptional goods and services all the time, there will always be individuals who are not happy. When that happens, it’s critical that the company has a plan in place on how it will respond. The company should already have action plans for dealing with the worst case scenarios that might occur. Additionally, Kade suggested that whoever is in charge of social media should have a strong relationship with the company’s legal department to avoid any major missteps.

Recall the fiasco that occurred after Amy’s Baking Company got a bad review on Yelp. The main issue wasn’t that a customer was unhappy, but that the owner did a horrible job responding to the bad review. It’s hard for an owner to get a bad review about their staff and service, and it’s critical that the response be one that attempts to resolve the problem privately and show that the company is customer-focused. In this case, the owner’s response caused irreparable harm to their and their restaurant’s reputation. Many people who read the review and the owner’s response said that they will never patronize that restaurant in the future. I have never been to Amy’s and now given the choice, I’ll go somewhere else.

Kade also suggested that companies never let an intern be in charge of social media because it’s important that whoever is in charge is someone who can make decisions on the fly to resolve problems. This should occur within 30 minutes, not in a few days. A fast and effective response can do as much to bolster a company’s reputation as providing exceptional service.

Filed Under: Employment Law Tagged With: , , , , ,

How To Copyright Your Blog

January 23, 2012 by Leave a Comment
Folklore NullElf: Burning Copyright by Martin Fisch

Folklore NullElf: Burning Copyright by Martin Fisch

This post was originally published on The Undeniable Ruth in October 2011. 

DISCLAIMER: Recent conversations with the Copyright Office have led me to change my stance regarding blogs and copyright registration. Please see this post for my updated views.

I’m working on my first ebook, which is tentative titled The Legal Side of Blogging. During law school, I wrote a substantial research paper on copyright, defamation, and privacy issues related to blogging. I also wrote a blog series called Can My Blog Get Me Sued, Arrested, Fired, or Killed. It made sense to combine the material from these two projects and present them in a way that was useful to the average blogger for my first solo book project.

Blogs didn’t exist when the Copyright Act was written or last revised. The drafters only considered literary works that are published on paper when they wrote the law. When it comes to copyrighting blogs and websites, the best we can do is to try to find the digital equivalent to the works published on paper and register them accordingly.

The purpose of the Copyright Act is to protect advancements in the arts and sciences by giving authors and artists protection for the works they create. Copyright protection is afforded to every original expression that is fixed in a tangible medium. The law was written to protect things like books, photographs, music, sculptures, paintings, and audiovisual works. Works that exist only in an electronic form are fixed in a tangible medium, and thus, the law protects them.

I’ve spent hours considering the copyright implications of blogging and discussed it at length with my cyberspace law professor. We came to the conclusion that bloggers who blog on a set schedule are most like people who write a column in a newspaper or a magazine; and therefore their blogs should be able to be registered as serial works.

A single work can be registered with the United States Copyright Office for $35. If you publish a blog every week and register it, that will cost $1820 each year. The benefit of having a serial work is that you only have to register it every 3 months for $65, which is only $260 for the year. This saves a lot of time and money.

This week I was working on my ebook and I needed some clarification on how bloggers should go about registering their works, so I called the Copyright Office. The operator was very helpful in directing me to the circular on serial works, and she thought my ebook idea was interesting.  About five minutes later, I had a follow up question so I called her back. She said she was glad I called back because she needed to tell me that blogs cannot be registered as serial works. The only thing a blogger can do is register each post individually!

Seriously?!?!?!

I can see the Copyright Office requiring individual registrations for each post for someone who only writes sporadically; but this rule makes no sense for someone who posts on a weekly basis. They should be given the same protection as any other writer who publishes in a similar fashion in a newsletter, journal, or magazine.  Thankfully, the law protects writers’ and artists’ work the second a work is created, not from the date it is registered. The benefit of copyright registration is that you get to collect attorneys’ fees and statutory damages if someone steals your work and you successfully sue them.

I used to think that the best thing a blogger can do is register their blog as a serial work and use Google Alerts to monitor the internet for possible infringement. With this latest development, it makes more sense not to register every blog post you write, but only those  that you expect someone will try to pass off as their work. You can still use Google Alerts to police the internet for potential infringers. You just won’t be eligible for attorneys’ fees or statutory damages if your work hasn’t been registered within 3 months of publication if you find that someone is passing off one of your blog posts as their own. However, you can probably still get the post removed from the infringer’s website using a takedown notice under the Digital Millennium Copyright Act.

Filed Under: Uncategorized

Why I Opened A Solo Law Firm

January 23, 2012 by 6 Comments
Office Coffee by Mauricio Lima

Office Coffee by Mauricio Lima

It’s still a bit surreal to think in the last four years I went to law school, passed the bar exam, opened a law firm, and have goals of becoming a leader in my niche areas of practice.

When I started law school, I was spoon-fed the idea that every lawyer should aspire to clerk for a judge and work at a big law firm with the goal of becoming a partner. When I started working in the legal field, I realized that I didn’t want any of that. I don’t want to be trapped in an office 60 hours/week, working on cases I don’t care about, and setting myself up to have a severe chemical dependency problem, a heart attack, or a nervous breakdown before turning 40.

I’ve been a blogger for the last two years. During that time, I’ve developed passions for intellectual property, internet law, flash mob law, and preventing cyberbullying. I also had the pleasure of working in the Innovation Advancement Program at Arizona State University where I worked with entrepreneurs to get their endeavors off the ground. It was such a joy to help them breathe life into their dreams.

When people ask me where I work, I love that I get to respond, “In my laptop.” I have a virtual law office, which means I can work almost anywhere that I have wi-fi and a power outlet. I am not encumbered by a formal office or staff. With this autonomy comes more options for myself and my clients.

When I reflect on why I decided to open Carter Law Firm, one word comes to mind: “freedom.” I have the law career I’ve always wanted. I get to work on cases I’m passionate about and with interesting clients. It also gives me time to be a public speaker on legal issues and to blog posts and ebooks.

Opening this firm is the beginning of an incredible adventure. I’m excited for what’s to come.

Filed Under: News Tagged With: , , , , , , , , , ,
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