BlogHer Business Live-blogging: How to Keep Out of Real Trouble

I am at New York for the BlogHer Business conference. The conference will answer the question: How can Businesses Succeed in a Social Media World?

The Day Two track "How Do I Get It Right the First Time? " has three sessions that will be live-blogged. The first, "Should I blog?", is listed on the Silicon Valley Moms Blog. Session two is here, listed below is session three.The full list of live-blog posts  and Speaker bios are listed on the BlogHer site. 

How to Keep Out of Real Trouble

A closer look at those top legal and P.R. questions every business owner or exec has before kicking off a social media program. Cautionary tales and how to avoid becoming one.

Marianne Richmond, the moderator, writes the Resonance Partnership Blog, Conversational Media Group Blog and is the Technology and Web Contributing Editor for BlogHer. She interviewed:

• Nina Kaufman, co-founder of Paltrowitz & Kaufman LLP as well as founder and President of Wise Counsel Press LLC. Her blog is called Business Partnership Central.
• Megan Belcher, a lawyer for Blackwell Sanders.
• Karen Wickre, Senior Editor on Google's Corporate Communications team. She oversees all 40 of the Google corporate blogs and is managing editor of the Official Google Blog, which attracted 8 million unique visitors last year.

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Marianne Richmond: How many people blog? How many people blog for a corporation? How many own their own businesses? People that run their own business (blog) have different needs then a corporate blog. There are legal and ethic issues, and crossing the line is a big issue. Best practices are important. How to stay out of trouble means that you plan to stay out of trouble. 

Audience member: I know I can get sued for anything, but what can I be sued for?

Karen Wickre: Context is everything. 

Nina Kaufman: Two categories that independent bloggers need to be concerned about:

• Defamation. Be careful that you are not libeling people, be truthful. If you say “In my opinion George Bush’s policies in Iraq are just a front for business deals”, then you may be in trouble. You want to temper it for a business context.

• Copyright: You need to be judicious on what you use from other people. You need to be original. Copyright laws want to encourage debate, but not taking someone’s work in whole. 

Roxanne Darling: The video community produces their content with creative contents. They are grabbing our RSS feeds, embedding them in their sites and putting advertising to make money. 

Megan Belcher: We live our lives by case law. You are seeing these new issues that have not been sorted out yet. There is not a definitive opinion on that. 

Elise Bauer: People take my content and link back, that is fine. But if they just aggregate it and put up ads using Ad Sense, I contact them and ask them to take it down. Then I threaten to file a Digital Millennium Copyright Act complaint to Google.

Karen Wickre: We will get to that immediately and take it down. 

Audience Member: Copyright gives you the best protection. 

Nina Kaufman: If you want to seek a remedy against a blogger it will be expensive. The smaller blogging companies can’t afford to defend their content. 

Julian from Redbook Magazine: I oversee Redbook’s blogs. We don’t moderate comments. What if one of our writers puts negative feedback, is Redbook liable? 

Karen Wickre: Do you have any provision that the blogs are opinions of the individuals, that you do not accept liability for their opinions? 

Julian: If you have a completely open policy, you may have less responsibility? 

Nina Kaufman: It is more related to if you change the comments. Instead, if you have a inappropriate comment, just take it down. 

Julian: What are our rights for intellectual property on fan sites? 

Nina Kaufman: If you make a knock-off (and not a parody). Then you are making a derivative which is liable. 

Angela LaSasso from HP: We are a multi-national company, how do we protect our company and content? How do you protect the brand? 

Karen Wickre: We have trademark attorneys that handle brand issues. 

Megan Belcher: My opinion is that it is about managing risk: insuring that you are being proactive internally (with guidelines). Sometimes companies jump into blogging without the infrastructure. The next step is being aggressive through in-house or outside counsel. Be proactive for risk management to make sure you are not doing something that is liable. Think in the bigger picture on how you manage your people and content. People need to always be looking at the policies and revising them. 

Megan Belcher: As a corporate lawyer that has a personal blog. It is locked down, my clients do not want to know about me going out with my girlfriends. 

Nina Kaufman: The issues they are facing are not different then those in the non-blog world. I think employees are just looking for guidance. It should be an outgrowth of what you are already doing. I had a client whose manager posted their client list on his My Space blog. But they had no policies. 

Karen Wickre: Make sure there are good conduits in the company to find out the right information and guidelines. 

Audience Member: I am creating a blog targeted towards teens, what are the issues? 

Megan Belcher: We also represent school districts. We get complaints about the internal websites are schools. My Space has been the biggest development that has changed sexual harassment policies. 

Nina Kaufman: No one should post something anonymously. Then you don’t have to go through many layers to find out who posted. 

Megan Belcher: There have been a lot of demand letters flying around. If you are in federal court it could be years before you go to trial. 

Nina Kaufman: Medialaw.org listed all the cases that include blogs recently. Listed by state. The vast majority include individual bloggers that are sued. 

Audience member: What legal representation should a small publisher look into? 

Nina Kaufman: Electronic Frontier Foundation is a good source of information and has links to other resources. I don’t believe they have a legal fund. Why are they sued?  One woman slept with all the Washington brokers and wrote a book about it (including male body part size). You need to be judicious about what you say.

Audience member from Amazon: What is our liability if Amazon licensed information from bloggers? 

Nina Kaufman: If you are using fair use of works of 5,000 photographers then it is not like a creative commons license. The courts look at it in context.

Audience member from Amazon: They signed on a piece of paper that Amazon has the rights to use that picture..

Megan Belcher: You need to put in the right infrastructure to protect yourself, get the paperwork. 

Nina Kaufman: It is not whether you are incorporated or not, it is still the individual. 

Audience member: If I was a free lance reporter would the corporation protect me? I assume the media company has a general counsel that would step in. 

Megan Belcher: I assume the general counsel would point the finger back at you. Because you would have independent judgment is the issue. If you are an employee, it would be different. 

Nina Kaufman: Major corporations are clear, that if you are blogging that it is your responsibility. 

Audience member: I have a personal blog that supports me. It is a cooking blog. What if someone cooks one of my recipes and then burns their hands. Would incorporating help? 

Nina Kaufman: It is the insurance that is important. 

Megan Belcher: Maybe you should say “Make it at your own risk”. 

Nina Kaufman: Once you have a blog, you are a publisher. 

Audience member: Am I liable if I do a negative product review on the blog? 

Nina Kaufman: If you have had an experience with a product that is the truth, then that is appropriate. But if you say the product is dangerous and can hurt children then you can be sued. Route your post in fact “It is too small, it does not function well because X, Y, and Z”. 

Audience member: You mentioned earlier that you need to be aggressive in protecting your copyright. My question is, what if someone violates my fair use after I write a post? The corporate team does not come to my aid. What can I do to defend the copyright when it is the company has the rights but it will also become mine in 60 days? 

Megan Belcher: Contacts are important “ If I raise an issue, they need to respond in 10 days etc….” 

Nina Kaufman: DMCA (Digital Millennium Copyright Act) allows you to put in a request because they are infact violating your copyright act. 

Audience: I have advice for product reviews. You are not often going to say, I did not like this product but it was fatal. Don’t be funny about products you don’t like. A lot of bloggers are funny and clever, which is dangerous for product reviews. Something that says ludicrous and cute can send you to court. 

Nina Kaufman: Make it relevant, stick to the facts. 

Audience member: We are a web hosting company that has terms of service agreements. We can take down sites of people that violate the terms, but if they don’t violate the terms but are still inappropriate – how can we help those having privacy issues? For example, a doctor had an affair with a women and blogged about us because we host the blog. He asked her to take it down, then asked us.. He had money for an attorney, but what about those who don’t have money. 

Nina Kaufman: If they are not public figures, they have the rights of privacy. When there is a lawsuit about to brew, there are stages. The first may be “if you don’t take this down by xxx”. 

Megan Belcher: You should not insert yourself in the issue because you can be sued. 

Nina Kaufman: You can have a list of bar associations that they can find lawyers to help. 

Audience member: A question came up in the keynote, is there a level of employment that what a persons says represents the company? 

Karen Wickre: It is not the level of employment as far as blogging goes. In the PR group, we vet people doing public speaking. It is media training for how they present, to stick to the facts and give the corporate message. Employees are free to have blogs, except for sharing proprietary information. 

Megan Belcher: Any manager that has been deemed with authority for a message could “bind” a company as speaking for that company.  The implication of an executive talking about a company has legal issues. 

Nina Kaufman: Be professional, watch your mouse, and think seriously for the purpose of the blog. What is the tone? How will this enhance your business? 

Megan Belcher: Be proactive; think about the things to be ahead of the curve. Don’t be afraid to take something new or exciting, take risks. 

Marianne Richmond: This is the first lawyer I heard say to take a risk. 

Megan Belcher: Lay out the problems first and then take the risk (to blog). Most of my clients have been happy they took the risk.

Karen Wickre: It is the value of your information you have provided that governs what is on your blog. The quick publishing button is tempting. 

Audience: How do you know that your disclaimer is valid? 

Megan Belcher: You won’t know, so that is why you should get counsel. I have a client that sat for the LSAT so he thinks he can draft contracts. Do research ahead of time to prepare, but then seek counsel. Make sure you are getting what you want.