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October 20, 2006
A writer's obligations: ethics, law and pragmatism, Part 1: Law
Fair Use? In a former career, I
designed the cover of this law book
and drew the illustration of the
column based on a design created by
a colleague for another book in the
series. Using the image to illustrate
a point seems to be fair use. However
if I had re-used the drawing of the
column as part of another design, be
it a book cover, poster or something
else, that would probably not be fair
because the publisher, my former
employer, maintains the copyright
for the illustration.
Last week I wrote about the different roles we may play as writers on the Web. This week I'd like to explore how those roles impact the obligations we have to our readers and how our understanding of those obligations can help us make choices regarding the content we publish online. While we can define our obligations any number of ways, I think for the most part they break down into issues of ethics, law and pragmatism. Today I'll focus on the law.
I am not an attorney nor do I play one on T. V. None of the following should be construed as legal advice. I am writing this in the State of Ohio in the United States, however laws vary greatly by jurisdiction. Wherever you are writing in the world, on the Web, you should be cognizant of the laws and rules in your location. Given that what you publish online may be read anywhere, you should also be aware that what you publish legally in place A may be considered illegal in place B. Below are some of the more common legal issues that should be considered when writing online.
Commercial Law, Advertising and Fraud
If your Web site or blog includes a marketing component, whether it be event promotion, student recruitment, or advertising for a commercial product, you should be aware of regulations relating to fraud, bait and switch, and truth in advertising. If you state that a certain rock star will be performing and pizza will be served, make sure that is the case. If the rock star cancels and you must bring in a different performer, notify your audience as soon as possible. If you claim that your pizza is better than the pizza served across the street, be prepared to back that up. For more information visit the following sites.
- Code of Federal Regulations: Title 16 Commercial Practices
- Federal Trade Commission Advertising Guidance
Copyright protection is granted to you automatically when you author an original work. While most of us understand that we can't directly copy someone else's work—I cannot go to your Web site, copy your article on parakeets then post it to my site—we don't always understand the boundaries between stealing a work, referencing a work and being influenced by a work. Mano Singham, in his article Why do people plagiarize?, offers some good examples of how paraphrasing and improper use of quotes and citations can result in unintentional plagiarism.
Proper use of quotations with accompanying citations are considered "Fair Use," but what is considered "proper" is harder to define. Whether or not your use of another's work is considered fair depends on your purpose, the nature of the work, the amount of the work you use, and the impact of your use upon the original owner. Online the issue becomes more complicated. Even the simple act of linking to another site brings up questions regarding fair use. If you have any doubts about your usage, you may find it is safest to contact the owner of the material and ask for permission to use it. Learn more about Fair Use and Copyright at the following sites.
- The Bloggers' FAQ on Intellectual Property
- Case Western Reserve University Copyright Compliance Policy
- Copyright @ Case
- Copyright & Fair Use, Stanford University Libraries
- Copyright Issues Present Ongoing Dilemma: To Link or Not To Link?
- Cut-and-Paste Can Be Sticky
- Fair Use Under Fire
- U.S. Copyright Office
Libel, Slander and Defamation
Defamation results when someone makes a false claim about another that publicly injures his/her reputation to the degree that it is considered damaging. If the false claim is made in writing, whether that be on the printed page or on the Internet, it is considered libel. If the claim is made orally and spread through broadcast media (including podcasts and streaming audio or video) or word of mouth it is considered slander. Laws vary greatly between countries such that in the United States the onus of proof is generally on the plaintiff, whereas in the United Kingdom it is on the defendant. Personal Injury Lawyer.com provides a good explanation of these issues.
As an example, if I were campaigning for John Brown to become the next Prime Minister of country A, and wrote in my blog that the incumbent, John Smith beats puppies, I could expose myself to a potential lawsuit. This would be particularly true if the puppy rumor spread and caused him to lose the election. If Smith happens to take excellent care of his two Basset Hounds then (according to the laws of Country A) it is quite likely that I will lose that suit. If he does in fact beat puppies, I may win, but at great financial cost.
Rather than stooping to name calling, I would be better served legally (and practically) by discussing Smith's track record as Prime Minister and taking the time to cogently explain and document why his policies are bad for the country. The following sites offer additional information on this topic.
- The Bloggers' FAQ on Online Defamation Law
- Defamation and the Internet: Name Calling in Cyberspace
- Law Offers Internet Publishers Scant Guidance on Libel
- Defining Jurisdiction On The Internet
- Libel Ruling Provides Protection for Forums, Not Individual Bloggers
- Internet Libel Laws In Limbo
Trade secrets, private information, etc.
Even if you write it yourself, there may be some information that you are not legally allowed to publish. Trade secrets, such as the recipe for Coca Cola and private information such as a person's sexual orientation may fall into this category. Learn more at the following sites.
- Electronic Frontier Foundation's Legal Guide for Bloggers
- Getting Permission to Publish: Ten Tips for Webmasters
- Media Center Library at New York Law School
- Podcasting Legal Guide
- Web Site Legal Issues
While questions of legality and ethics often overlap, some may feel that the publication of X, although legal, is unethical. I'll explore that and issues of practicality in upcoming articles.
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