Risks Associated With Publication

Every time you publish something online, whether it's a news article, blog post, podcast, video, or even a user comment, you open yourself up to potential legal liability. This shouldn't come as too much of a surprise because the Internet, after all, is available to anyone who wishes to connect to the network, and even the smallest blog or most obscure discussion forum has the potential to reach hundreds of millions of people throughout the world.

Often the legal risks are small, but not always. The risks you could face when you publish online can take a number of forms, depending on what and how you publish. The sections that follow are not intended to make you an expert on media law, but merely to help you identify potential "red flags" so that when you publish something that might result in liability, you will know to be extra careful and will take the necessary steps to minimize your potential legal risks.

Let's start with the more obvious risks.

First, if you publish information that harms the reputation of another person, group, or organization, or inflicts emotional distress upon another person, you may be liable for "defamation" or "false light." Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements). False light, which is similar to defamation, generally involves untrue factual implications about the subject that, although they might not hold the subject up to scorn or ridicule, nevertheless cause emotional distress. The crux of both of these claims is falsity; with very rare exceptions, truthful statements and implications that harm another's reputation will not create liability, although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature. We explain the details of defamation and false light and provide some practical tips for avoiding defamation and false light claims in the section on Publishing Information that Harms Reputation.

Second, if you publish private or personal information about someone without their permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. For example, in most states you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This could include such things as writing about a person's medical condition, sexual activities, or financial troubles.

If you use someone else's name, likeness, or other personal attributes without their permission for an exploitative purpose you could also face liability for misappropriation or violation of the right of publicity. Usually, people run into trouble in this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial. We discuss the details of misappropriation/right of publicity and private facts claims and provide some practical tips for avoiding these claims in the section on Publishing Personal and Private Information.

Third, if you have web forums, allow reader comments, host guest bloggers on your site, or if you repost information that you receive from RSS feeds, section 230 of the Communications Decency Act (“CDA 230”) will likely shield you from liability for certain kinds of problematic statements made by your users, guests and other third-parties on your site. This important federal law protects you from tort liability for statements contained in these materials – and any other user-submitted content – you publish on your site. You will not lose this immunity even if you moderate or edit this content, whether for accuracy or civility, so long as your edits do not substantially alter the meaning of the original statements. Keep in mind that CDA 230 will only protect you if a third-party – not you or your employee or someone acting under your direction – posts something on your blog or website. It does not shield you from liability for your own statements. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fourth, if you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law.  Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims (but not trademark or other intellectual property claims) under the Digital Millennium Copyright Act (DMCA).  In order to take advantage of the DMCA, you must register an agent with the Copyright Office to receive notices of infringement, establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing.  We cover liability associated with copyright, trademark, and trade secrets, as well as the procedures you should follow under the DMCA, in the section on Intellectual Property.

Fifth, if you are a blogger or social media user who reviews or otherwise writes about products and services, the Federal Trade Commission has issued "Guides Concerning the Use of Endorsements and Testimonials in Advertising" that may impose disclosure requirements on you.  These guidelines require that you disclose "material connections" you may have with a company whose products or services you "endorse."  Without the legal jargon, this means that bloggers and social media users must disclose their relationship with a company when they are being paid or otherwise compensated by the company to comment favorably on its products or services.  We cover these requirements in the section on Publishing Product or Service Endorsements.

Lastly, as you publish your work online you may want to correct things you have previously published. Your willingness to fix past errors in your work will provide several benefits. It will make your work more accurate and reliable and will likely diminish your liability for defamation and other potential legal claims. We explain the benefits of correcting your errors and provide some practical tips for handling requests to correct or remove material in the section on Correcting or Retracting Your Work After Publication.