Other Blogging Considerations

A Few things outside the ethics rules to consider


Besides the fact that a lack of commenting is one of the factors that the Virginia Supreme Court found indicative of whether a blog was commercial speech or not,[ref]Hunter v. Virginia State Bar, No. 121472, (Supr. Ct. of VA, Feb. 28, 2013).[/ref] commenting is also one of the best ways to engage with other bloggers and legal professionals in an attorney’s practice area.  While some attorneys are concerned about the open (and sometimes enflamed) nature of blog commenting, remember that you can moderate comments, prohibit anonymity, or take any number of other steps to keep comments from getting out of control.  It’s also critical to keep in mind that the operator of a blog cannot be held liable for statements posted by third parties.   Under 47 U.S.C. § 230, no user of an interactive service can be treated as the publisher or speaker of information provided by another user.  This statute broadly preempts any state law that would otherwise hold a blogger liable for republishing allegedly defamatory statements via blog comments.[ref]See, e.g., Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).[/ref]

Anti-SLAPP Protection

Some would-be bloggers are concerned that the subjects they choose to write about may expose them to defamation lawsuits from thin-skinned public officials, businesses or organization leaders.  While there’s no question that the threat of SLAPP suits – “Strategic Lawsuits Against Public Participation,” or suits designed to bully the target into keeping their mouth shut – are a barrier to full and effective exercise of first amendment rights, a growing number of jurisdictions are enacting anti-SLAPP laws.  The best of these laws – including those found in California, Washington, Texas and Washington, D.C. – allow the defendant targeted by a SLAPP to bring an immediate motion to strike the complaint.  If the plaintiff can’t make a prima facie showing at that time, the complaint is dismissed and the defendant is awarded attorneys fees (and, in the state of Washington, a mandatory $10,000 fine).  Such laws provide a powerful disincentive to filing meritless defamation cases.[ref]See Public Participation Project Overview of State Anti-SLAPP Laws.[/ref]

Copyright Considerations

There’s little for legal bloggers to worry about when it comes to copyright, provided a few preventative measures are taken.  First (and most obvious) is to not copy your blog posts from things written by others.  Slightly lesser known is the idea that copying any old photo off the internet for use on your blog ISN’T OK under copyright.  Yes, even if you provide attribution to the photographer. Luckily, it’s easy to use one’s own photos, or purchase inexpensive (sometimes free; often less than $1.50 per image) stock photography from StockXCHNG or iStockPhoto.

Or use the “free embed” option to access some 35 million photos in the Getty Images archive.

But really, use your own photos.  For better or worse, nearly every photo on this site was taken by me using Instagram.

Finally, there’s the Digital Millennium Copyright Act (the “DMCA”).  The DMCA provides a “safe harbor” from liability for a blogger who promptly removes copyrighted material posted by others upon receiving notice.[ref]17 U.S.C. § 512 (DMCA operative provisions).[/ref] The DMCA is a huge protection for a site like YouTube; for bloggers it really only comes into play with respect to comments.  Still, if you want to take a buttoned-up approach, there is a compliance step that must be taken to ensure you have DMCA protection:  You must register your “DMCA Agent” with the U.S. Copyright Office.[ref]Copyright Office – Information on Service Provider Designation of Agent to Receive Notification of Claims of Infringement.[/ref]