The internet is chock full of bad legal advice, but it's a bit odd to see it posted on a site for a large insurance company. Insurance company The Hartford* apparently has a website full of "small business" advice. This, by itself, is not a bad idea. Providing good content that people want is something that many companies should be doing. But the key here is "good content." Which brings us to the following article that's been passed around a few times among lawyers on Twitter. Officially, it's an article describing "5 Easy Ways to Get Sued Over Online Content & Social Media"
written by Deb McAlister-Holland. Here's the stunning thing about it: nearly every word in the thing is dead wrong
. Honestly, there's so much that's flat out wrong that we wouldn't even have the time to go through it all, unless we did basically nothing else today. So we'll just pick a few of the more ridiculous low-lights. It starts off with an unsubstantiated claim that the CFAA is the cause of "much of the rise in litigation," but then jumps right into the fire with a discussion on copyright infringement that begins with this line that is, uh, just wrong:
There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple.
Except there are many, many, many defenses against claims of infringement, from fair use to de minimis use to copyright invalidity to the statute of limitations has passed and more and more and more. A simple Google search might help. Either way, if you're unfamiliar with the concept of fair use, you shouldn't be writing about copyright.
No receipt, no written permission, no link to a Creative Commons license? You lose.
Except, that's not true. I mean, let's just look at just
of the cases
we've written about in just the past few months, where there was no receipt, no written permission and no link to a Creative Commons license -- and in all of those cases, the person or company using the content won. This is just bad legal advice.
The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. Who sets the value? The guy who is suing you.
None of that is even close to accurate. There's an entire section of copyright law 17 USC 504
devoted to remedies for infringement that you'd think someone writing about this would have (perhaps) Googled first. First of all, there is no "automatic" remedy. The judge or the jury sets the damages within certain guidelines. Statutory damages tend to be the standard, rather than actual damages. The "value" of the material is considered almost entirely irrelevant in statutory damages (and frequently irrelevant in the rare "actual damages" cases). Treble damages are only awarded in cases of willful
infringement, and is not based on "the guy who is suing you."
So, if you can, take advantage of the “ safe harbor ” provision of the Digital Millennium Copyright Act (DMCA) and remove the offending content as soon as you are notified of a possible copyright problem. Just removing the offending content may not prevent you from being sued or being required to pay damages, but it can reduce the amount of damages owed in a successful suit.
At least this time McAlister-Holland actually references something associated with copyright law (the DMCA), but does so almost entirely incorrectly. Since the original setup of the piece is about "content marketer" (what the hell is that?) and writers getting sued, the DMCA safe harbors almost certainly wouldn't apply in the first place, since they're about protecting service providers
(intermediaries) from infringement done by end users (such as the writer). So, while it's correct to say that the service provider can be protected via the safe harbors by removing infringing content upon notification, almost everything else is wrong. Also, the whole point of the safe harbors is that it does, in fact, stop you from having to pay damages. That's why it's a safe harbor. It has nothing to do with reducing the amount of damages. The original writer, however, may be sued either way, but the safe harbors do nothing to with the damages for that individual. Either way, the entire paragraph is a confused jumble of wrong.
Next up, McAlister-Holland suggests that people writing reviews online, such as on Yelp, are potentially opening themselves up to tortious interference claims. While it's true that angry plaintiffs in online review cases will almost always toss in a "tortious interference" claim in any lawsuit, the idea that a typical review will be tortious interference is laughable. And yes, you could
get sued for just about anything, but it doesn't mean the lawsuit is legitimate. From there, she discusses defamation in a manner that is... misleading, at best. Here's a note: when discussing the specifics of a law, don't use non-legal dictionary definitions. She even brings up criminal defamation as a possibility, despite it being exceptionally rare. Besides, it's a very odd article that highlights criminal defamation but never gets into the details of the high bar associated with defaming a public figure (she only mentions that the rules vary based on public or private individuals, never explaining how or why). Also, this:
One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter.
I don't even. "Intent may (or may not) matter"? NYT v Sullivan
establishes that there needs to be actual malice in posting false information about public figures. Intent very much matters, and the "mind of the reader and the outcome" matter almost not at all.
She then cites... a Canadian
case to prove her point. She might want to research the (rather extreme) differences between US and Canadian defamation laws. I mean, she might as well pick on defamation laws from the UK or, hell, Saudi Arabia, if the intent is to warn you to avoid any global
The final section is on publicity rights, and again, gets an awful lot wrong:
The right of publicity is what can bite you if you’re one of those people who posts every photo you take on Facebook, with no regard to the preferences or feelings of other people in the photo, or when you use material that is strongly identified with a person. It’s why all those “tribute” bands are “tributes” instead of knock-offs: words matter, and how you present someone else’s intellectual property matters.
Now, publicity rights are state-based laws, and they vary greatly by state, but I'm hard-pressed to see how any of the situations listed above have anything at all to do with any publicity rights laws. Publicity rights laws tend to be about preventing the commercial exploitation
of an individual's identity -- with the most standard example being using a famous person's likeness in an advertisement without their approval, suggesting an endorsement.
So get permission before you publish long excerpts from someone else’s blog (or, heaven forbid, pick up and reblog the whole thing as a “guest post” when they were never asked if they were willing to be a guest blogger on your site), and especially get permission before you publish photos of any identifiable person (that means someone who could be identified in a photo, whether you know who they are or not) without their permission.
So that first part has nothing to do with rights of publicity, but is a copyright issue (which you'd think she'd know given that she has a section on copyright in this very article). And while there might
cases where you could argue that posting a photo of an identifiable person without permission might lead to a publicity rights case, it's a stretch. There's the Katerine Heigl
situation, of course, but that involved a drug store tweeting a picture of her carrying a bag walking out of one of their stores (and, even then, it seemed like a huge stretch for publicity rights). Merely posting a picture of someone famous to your Facebook? Not a publicity rights issue.
There's then a paragraph that walks back what she says, suggesting it is okay to post photos of famous people if you don't suggest they endorse "you." Then there's this:
The people most likely to lose their jobs or get sued for a breach of the right to privacy are health care workers, cops, teachers, and anyone who works for any government agency.
Huh? I don't even know what that means. How are health care workers violating someone's publicity rights?
And, then suddenly, we're back into defamation. Or something:
Context is important, too. If you pick up a generic photo of a bell man or hotel desk clerk, the individual pictured could make a claim for defamation (if it might be construed by the reader that the pictured individual provided bad service because the blog post is about a bad hotel experience).
Anyway, after some legal folks on Twitter started discussing the article, with Ken "Popehat" White summing it up
as: "STOP MAKING PEOPLE STUPIDER, ASSHOLES," McAlister-Holland claimed that the piece was "heavily edited"
from something she wrote, and that The Hartford version "introduc[ed] many errors." She further claimed that it "does not represent my work."
However, others like Asher Langton pointed out that the original version, since deleted from her own website was still available via Google cache
, showing the same questionable analysis of the law.
She also claims
that the link is "unauthorized":
Except that The Hartford's site claims it licensed it via NewsCred, a marketplace that content providers such as bloggers can use to syndicate their work. Of course, if that's false (which seems unlikely), perhaps McAlister-Holland could have a legitimate
claim of copyright infringement. Wouldn't that be ironic?
Anyway, there are lots and lots of problems with the article (even beyond the ones we discussed), but the real question here is why is a credible business like The Hartford reposting such crud? Not only is it woefully inaccurate, it only seems likely to encourage frivolous litigation based on repeating the bad legal theories in such a blog, now with the "credibility" of The Hartford behind it. That just seems like a bad content strategy all around.
*Disclaimer: Last year, The Hartford briefly sponsored a few of our posts, but had no editorial control over the content of the posts. And, we think those posts were significantly better than the crap discussed above.