The Risks of Publishing Content

Every time you publish content online, be it website pages, blog posts, images, videos or even user comments, you open yourself up to potential legal liability. The Internet is public and available to anyone, so even the smallest blog has the potential to reach millions of people.

Legal risks are often overlooked by content editors and publishers. Considering that the law does not consider ignorance a legitimate defense it is important to consider some potential “red flags” when publishing content. Before publishing content, it is recommended that you take some steps to minimise your potential legal risks.

Let’s start with the more obvious risks

First, you have to acknowledge that you are responsible for the content you publish. You may involve a third party to publish your content, or you may think that your hosting company should take responsibility for your content, but this is not the case, and the buck stops with you.

Second, if you publish information that harms the reputation of another person, group, or organisation, or that inflicts emotional distress upon another person, you may be liable for “defamation”. Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact. This includes libel (typically written or recorded statements) and slander (typically spoken statements). False light is similar to defamation and generally pertains to untrue factual implications about a subject. So even stating something indirectly which may causes emotional distress is considered “false light”.

Third, 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, laws in Australia have progressed substantially over the last 10 years. In all states of Australia 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. People run into trouble in this area when they use a persons name or photograph in a commercial setting, such as in advertising or other promotional activities. 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.

Fourth, if you have web forums, allow reader comments, host guest bloggers on your site, or if you repost information that you receive from other sites or feeds, the Australian Privacy Act discusses liability for certain kinds of problematic statements made by your users, guests and other third-parties on your site.

Fifth, consider theTrans-Pacific Partnership (TPP) or Trans Pacific Partnership Agreement (TPPA) is a trade agreement among twelve Pacific Rim countries. The finalised proposal was signed on 4 February 2016 and it now makes it possible for international corporations to act across borders without interference from states. It features the Investor State Disputes Settlement (ISDS) system, in which foreign corporations are allowed to sue countries in order to protect the profitability of their investments. One can no longer assume to be protected by Australian Law.

Sixth, 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.

Lastly, remember Google and many other search engines will crawl and index your content. Even after you have removed any offending material from your site, it may still reside on the Internet. There are many sites that keep archive copies of your content and pages for their own purpose. Once such site is The Wayback Machine which may keep snapshots of your sites content over multiple dates. In some cases it may not be possible to remove content from the internet.

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 likely diminish your liability for defamation and other potential legal claims.

Credit: Digital Media Law Project