Blogger/ Business with Online Presence

INTRODUCTION

As always, speak to a lawyer before taking any major actions (or decisions not to act) based on this information.

KEY LAWS TO KNOW FOR BLOGGERS OR BUSINESSES WITH AN ONLINE PRESENCE IN CALIFORNIA

1. Email

Can I send people unsolicited emails?

You CAN send unsolicited commercial emails, but the email must:1CAN SPAM Act, 15 U.S. Code Chapter 103Computer Keyboard with social media keys

  • identify that the message is an advertisement
  • include a valid, physical address of the sender
  • provide a way to easily opt-out of future emails (like an “unsubscribe” link). Once the recipient opts-out, you can’t email them again unless they explicitly give you permission.

Spam/Junk email: You can’t send deceptive or abusive commercial emails.2CAN SPAM Act, 15 U.S. Code Chapter 103

2. Online Marketing & Advertising

Do laws against false or misleading advertising apply to the internet?

Most of the laws against false or misleading advertising apply to the online world as much as to the real world. But some of the ways they apply may be surprising, for example, even “liking” someone else’s comment on your Facebook page may be seen as you adopting or holding that statement. If the comment is false or misleading, it could get your business in trouble.3FDA letter to Tirosint

What about rules against marketing certain products to children? 

Websites may not market certain products to anyone under 18, such as alcohol, tobacco, or weapons.4See full list at B&P 22580(i)

3. Reviews and/or endorsing products or services

Do I need to disclose my relationship to products I review or endorse?

If you have an affiliate relationship with a company (they give you a cut for sales you direct to them) and you publish a review or endorsement of that company’s products, you must disclose that affiliate relationship.5see FTC guidance on testimonials and endorsements

Can I sue Yelp for defamatory customer reviews?

Nope.

Can I prevent my customers from writing any negative reviews about my business?

No. A business cannot prevent a consumer from sharing their “honest opinions” about the business’s products or services.6Consumer Fairness Review Act But that does NOT mean a reviewer can post things that are harassing, abusive, or false or misleading.

4. Privacy and the Internet/Social Media

Do I need to post a privacy policy on my website?

If your website collects personally identifiable information from people, you must post a privacy policy.7California Online Privacy and Protection Act, Business & Professions Code 22575-22579

The policy must state what type of information is collected, whether it is shared with others, and if so what type of organizations see the info. The policy must also describe how the website informs users of changes to its privacy policy, and how the website responds to “do not track” requests.

Personally identifiable information includes any of the following: first & last name, address, email address, phone #, Social Security #, any other contact information.

If my website gets hacked, and someone gets users’ personal information, do I need to notify users about it?

Yes.8Civil Code Sec 1798.82 Companies and websites must notify users when they experience a data breach and someone steals personal information, including

  • name in combination with an account number9including social security #, Driver’s license #, bank account #, credit/debit card #, medical information, or health insurance info
  • username or email address, in combination with a password

Posting nude photos of someone on the Internet

It is illegal to take nude photos of someone without that person’s consent (unless the subject is nude in public).10Cal Civil Code Sec 1708.8(b) It’s also illegal to pay the person who took the photos, knowing that the pictures were taken in violation of the person’s privacy, and then post the pictures online.11Cal Civil Code Sec 1708.8(f)(1)

  • It is NOT illegal for a different person to repost the photos once they have already been posted.12Cal Civil Code Sec 1708.8(f)(3)

Privacy for children under the age of 18

For children under 18 who are registered users of a site or app, the site/app must give the child the ability to remove (or to have the site remove) any content or information they post on the site/app.13Business & Professions Code 22580, effective Jan 1, 2015 The website or app does NOT need to provide this option if the content or info was posted by someone else, or if the content or info is “anonymized” so that it does not identify who posted it or who the information is about, or if the child was paid for the content.

Note: This does NOT mean the site/app is required to collect age information from its users.

Privacy for children under the age of 13

Websites that get any information from children under 13 must:14Children’s Online Privacy Protection Act, found at U.S. Code Title 15, Section 6501

  • post privacy policy
  • notify parents directly before collecting personal data from children, and obtain their consent (parent can stop consenting any time)
  • implement procedures to protect kids’ personal info

5. Jamming wi-fi or cell

It is illegal for any person or company to jam, block, or interfere with another’s Wi-fi or cell signal.1547 U.S.C. Sec 333, also see FCC’s jammer enforcement

6. Copyright & the Internet/social media

Do I have rights to content I create and put on the internet or social media?

In general, yes. Copyright law applies fully to the internet, but it does get tricky, particularly for social media. The original content you create and post on the internet and social media, including blog posts, status updates that you write*, or photos/videos that you have taken or created**, is generally your property and you own the copyright. This means you get to decide what to do with the content, and what others do or don’t do with it.

*Writings need to be a substantial length to be given copyright protection. There is no exact number of characters or words to qualify; a tweet probably is too short, but it’s not impossible to copyright a tweet.

**You generally own a photo when you have pressed the button to take the photo. It doesn’t matter if you are in the photo or not. However, make sure the subject matter of the photo doesn’t violate privacy law.

However, social media platforms, including Facebook, often include in their Terms of Use that by using the site you agree to give the site the right to use your content however they want. The Terms also usually state that you give the right to other users to share your content. You aren’t giving up ownership of the content though, and you can stop their use of the content by deleting it from Facebook.

Can I post someone else’s picture, video, or writing on my social media?

Simply retweeting/clicking “share” under a Facebook post is most likely fine, as it can be implied that the creator granted permission by putting it on social media (and many social media Terms of Service say that by posting something, a user grants others a license to share it).

But if someone has NOT put their work on social media, you should probably not do it for them. You can’t use someone else’s content without their permission, unless it falls under “fair use“. If you can’t get the creator’s permission, stating who created the work (“attribution”) and linking to the creator’s website is a very good idea. Although even doing this, your post could still violate the creator’s rights. But it’s up to the creator of the content to decide whether to enforce their rights.

What should I do if I see a website stealing my copyrighted material?

You have the right to require that any website that displays your copyrighted materials without your permission quickly remove it from the site.16Digital Millennium Copyright Act Find out when you “own” material, and more at our Copyright page.

To get your copyrighted material taken down from a website, you simply need to send the website or host of the website a “DMCA Takedown Notice.” See here for details on takedown notices.

7. Hacking

Help! I think I’ve been hacked! What do I do?

If you have evidence of a hacking and can identify who did it (or is continuing to do it), the law allows you to get authorities to take immediate action to disable the hacker.17Computer Fraud & Abuse Act Contact local law enforcement or the Internet Criminal Complaint Center (see below).

8. Online shopping

Shipping time: If you sell products on the internet, you must ship the goods within the time frame you state (or within no more than 30 days), otherwise the customer has the right to cancel the purchase.18Federal Trade Commission rule found at Code of Federal Regulations, Title 16, Part 435

9. Cybersquatting

What is cybersquatting? Cybersquatting is when someone buys a domain name that is the same or similar to someone else’s trademark, for the purpose of taking financial advantage of that trademark. For example, buying the domain “campbells.com” to get web traffic from people looking for the soup brand would be cybersquatting.

Is cybersquatting illegal? Yes, unless it is done for non-commercial purposes, such as political activism.1915 USC sec 1125(d) The penalty for cybersquatting involves potentially millions of dollars in fines.

10. Free Speech

You should generally know about free speech rights and laws.

11. User generated content on your site

Am I legally responsible for the comments or posts that other people make on my blog or website?

Generally, no, you would probably not be held liable for posts, comments, etc by others which may violate various laws.20Communications Decency Act Section 230 For example, if someone posts illegal threats of violence, or defamatory statements, the website or other online platform would generally not be liable for these.

Specifically with regard to your users’ violation of intellectual property, such as copyright or trademark, you would be protected as long as you comply with DMCA takedowns (see above for more).


EXERCISE YOUR RIGHTS

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