What Is Cyber Liability, and Why Should You Care?

This guest post is by Matt Setter of MaltBlue.com.

Recently, here on Problogger, I was discussing the topic of privacy breach notification and how it affects us as bloggers. The article looked at the protection of our site’s information and the potential impact that the loss of that information may have on the privacy of our readers and customers.

Today, I want to look at another, closely related, topic—cyber liability. The internet is an amazing medium, providing us an enormous amount of flexibility and affording us nearly the same opportunity as an organisation ten to 100 times our size. But unlike the days of old, the internet landscape is not what it once was.

Whereas in days gone by, we could pretty much write anything, anytime, for any reason, and either no one cared, or if there was a concern, the legal jurisdiction we fell in to was largely undefined or near-impossible to enforce. Fast-forward to 2012 and the law’s rapidly catching up, if it hasn’t already caught up.

Now I’m not saying for a moment that we are or should be careless, callous or unthoughtful individuals inconsiderate and unprofessional in our conduct. Quite the opposite: we’re professional in our approach, conduct, content, and more.

But from time to time, mistakes happen. There are people around who, potentially, don’t share our level of professionalism or may, justifiably, feel that we’ve wronged them.

However, as in my previous article on privacy breach notification, I don’t want to unnecessarily alarm you about these issues. I just want to take a minute or two to let you know about cyber liability, specifically about one key component of it, the infringement of intellectual property and discuss:

• what it is
• how it may affect you
• what you can do about it, if you believe you may be at risk.

What is it?

The intellectual property aspect of cyber liability is quite similar to other fields, such as in computer software, academic papers, books, magazines, and other works. If we infringe on someone’s copyright or trademark, then we run the risk of having action taken against us by the other party to right what they perceive as a wrong.

If we, intentionally or otherwise, use a certain proportion of someone’s work as the basis for our own, we stand the risk that the aggrieved party may seek to take action against us.

Consider the following examples:

• In 1990 music artist Vanilla Ice was sued for copyright infringement over his track “Under Pressure”, by Queen and David Bowie. The track appeared on his album “To the Extreme” but didn’t give credit to the original artists, nor did he seek their permission.
• The Wall Street Journal reports that in 2008 blogger Shellee Hale was sued for remarks she made in forums relating to a software company. The article goes on to say that by 2007, 106 lawsuits had been brought against bloggers, up from 12 in 2003.
• Lotus corporation claimed, in the case of Lotus Development Corporation v. Borland International Inc., that “the structure of the menus by Borland was copyrighted by Lotus.”
• Oracle is currently suing Google for $1 billion dollars in damages, alleging copyright infringement over the Java programming language, which Oracle acquired when by bought Sun Microsystems in 2010.

How can it affect you?

In this modern day and age, we’re no long just bloggers—we’re also publishers. And as such, we increasingly have some of the same legal exposures and responsibilities as more traditional publishers.

But it’s not all doom and gloom. A number of countries, including the United States and Australia have what are referred to as “shield laws,” and these are increasingly being extended to include new media workers, such as bloggers.

Those living in countries such as the United Kingdom and other European nations are also, potentially, covered under the European Convention of Human Rights.

According to Out-Law.com, a shield law:

protects “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service” and a “radio or television news reporter or other person connected with or employed by a radio or television station.”

However, checking your facts before you seek to be covered by one of these laws is critical, as Montana blogger Crystal Cox found out the hard way. She was sued by Obsidian Finance Group for $2.5 million and tried to invoke shield law protection.

However, during the hearing, the judge ruled that she was not covered by them because she lacked:

1. any education in journalism
2. any credentials or proof of any affiliation with any recognized news entity
3. proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest
4. keeping notes of conversations and interviews conducted
5. mutual understanding or agreement of confidentiality between the defendant and his/her sources
6. creation of an independent product rather than assembling writings and postings of others, or
7. contacting ‘the other side’ to get both sides of a story.”

This goes to show is that although shield laws exist and appear to be becoming increasingly universal in their protection of bloggers and new media workers, they’re not universal yet. What’s more, they’re not a “get out of jail free” pass, nor do they give us carte blanche to say whatever we want.

It pays to double-check the laws before attempting to use them.

What can you do about it?

To keep it simple, ask yourself the following questions and write down your answers to them:

• Has what we’ve published infringed someone’s copyright?
• Has what we’ve published infringed someone’s trademark?
• Have we defamed someone?
• Have we invaded someone’s privacy?
• Have we misused confidential information?
• Has someone in our forums posted material that does one or more of these things?
• Has one of our members or staff made derogatory comments about a person or organisation?

Did you answer yes to any one of those questions? If you have, then it’s a good idea that you take action immediately about it so that you don’t fall foul of cyber liability laws. If you’re uncertain or would like professional advice, always remember to consult a legal expert.

Should we feel the need to do so, we can also take out insurance cover against legal action relating to cyber liability. An increasing number of insurers who will do this for us, including QBE and Trafalgar International.

However, looking at the list above, you can see that with a healthy amount of common sense and a professional editing process, we should have nothing to worry about.

Before anything gets published, bloggers should to continue to ensure that:

• our content’s been checked to ensure that we haven’t plagiarised or wholly copied anyone’s work
• if we make statements, we can and have backed them up
• if we’ve used content, we’ve sought relevant permission to do so and cited its original sources
• we have a fair usage policy in place for commenting on posts and participating in our forums, and that it’s enforced
• even if we’re cheeky and attention-grabbing in the content of our sites, we’re not crossing the line and being derogatory or defamatory of anyone or organisation.

You could sum all this up in two words: being professional. If we’re professional and use common sense, I don’t see that we’ll have any serious problems. However, if you’re not sure, or you just want to double-check, take the time to seek professional advice.

Summing up

While there’s always been, and likely will continue to be, a low barrier to entry for online publishing, that doesn’t mean that we can disregard normal, professional, and civilised etiquette.

We need to ensure that when we’re publishing content online, we’re keeping a professional tone, especially as the web becomes increasingly intertwined in all aspects of our daily lives.

Have you ever been on the receiving end of threats of litigation regarding your blog? Do you often see sites infringing content—even your content? Share your experiences with us in the comments.

Matthew Setter is a freelance writer, technical editor and proofreader. His mission is to help businesses present their online message in an engaging and compelling way so they’re noticed and remembered.