Though avoiding legal snafus online is as simple as not breaking any laws, it can be difficult to realize when you are committing a crime while tromping through the electronic frontier.
The most common legal areas with which people have issues online include:
- Copyright violation: See Chilling Effects’ FAQ on piracy and copyright infringement
- Defamation: See the Electronic Frontier Foundation’s guide to online defamation law
- Revealing trade secrets: See the overview provided by Cornell's Legal Informaiton Institute
- Violation of publicity rights: See Electronic Frontier Foundation’s publicity rights wiki
- Invasion of privacy: See the Digital Media Law Project’s materials on gathering private information
- Negligent publication: See Lloyd R. Rich’s article on negligent publication
The articles linked to above offer good external overviews and additional reading. For more brief detail, read on.
Simply put, it is illegal to violate others' copyright online.
You may be doing so without realizing it if you:
- Upload copyrighted material (e.g. software, music, a show, a book, a movie) to a peer-to-peer sharing site
- Download copyrighted material (most commonly, music, software, shows, movies, and books) from a peer-to-peer sharing site
- Use copyrighted material found via Google Images, on any website on your website, or in other non-private materials (if material does not have a special license clearly stating when and how you can use it, it is copyrighted)
To stay on the good side of copyright:
- Focus on publishing your own work, not that which was created by others
- Use mainstream channels to purchase, view, and download material (e.g. Netflix, Hulu, Amazon, iTunes, etc.)
- Do not publish or upload others' material unless (1) it has a license that enables you to use it, such as a Creative Commons or Public Domain license, and (2) you adhere to the requirements stipulated by the license (e.g. you properly attribute the content, you only use it for purposes allowed by the license, etc.)
For more information, see the following guides:
- How to Use and Attribute Creative Commons Images
- Protecting and Defending Your Content from Theft
- How to Send a DMCA Complaint to a Copyright Violator
Defamation can be classified into two groups- one written and one spoken:
- Libel: A published statement that is not true and can hurt someone's reputation
- Slander: A spoken statement that is not true and can hurt someone's reputation
Generally speaking, a statement you make online might be seen as defamatory if it is not true and:
- Could harm another person's professional prospects (trade, business, profession)
- Suggests that another person has broken the law or is morally corrupt
- Suggests that another place has an undesirable disease or mental illness
- Suggests that another person has been unfaithful or sexually irresponsible
Your chances of getting in trouble online for making a defamatory statement are incredibly low. The vast majority of people who get into trouble with defamation are in the media or publishing industry; you are unlikely to be a target for legal action unless you have a large audience. Furthermore, defamation of a public figure, such as a politician or celebrity, is unlikely to lead to legal action unless it was made with actual malice (and the offending party can prove it).
That said, do you really need to say unflattering and untrue things about other people online?
Though we may understand what we are doing when we sign nondisclosure agreements and other contracts promising employers and partners not to share confidential trade secrets, it can be somewhat easy to slip up online, where it is easy to forget that our content can reach significant numbers of people and that we are not so anonymous as we might imagine.
Avoid sharing potentially-confidential information (photos, videos, written information, documents, etc.). Furthermore, be aware that the following actions may lead to trouble regarding trade secret laws (and a significant handful of other laws):
- Stealing confidential information (even if you do not share it)
- Hacking into an account or website (even if you do not share it)
- Breaching your employment contract by sharing confidential information
- Breaching your employment contract by accessing confidential information to which you are not meant to have access (even if you do not share it)
- Publishing information from a third party who you know stole it, hacked into an account to get it, or breached his or her employment contract to get it
Will the First Amendment protect your right to publish trade secrets in some cases? Yes. But your legal and financial safety may be determined by a specific court ruling, and you may end up paying dearly for the risk you took to take or share information on legally unstable grounds.
Publicity rights have to do with use of a person's likeness for commercial purposes. You can avoid violating others' publicity rights by:
- Not insinuating that others have endorsed your work, business, products, or services
- Not using others' likenesses to sell products or services
- Avoiding use of others' names and likenesses without permission in commercial speech (such as advertising)
- Avoiding use of others' names and likenesses to your advantage in general
- Getting written consent in the event that you do use someone else's name or likeness in commercial speech
Rights to Privacy
You can avoid issues with invasion of privacy by being respectful of others' reasonable expectations of privacy. To do so:
- Do not intentionally investigate or expose others' private affairs
- Do not invade others privacy in a manner that a reasonable person would find to be offensive
- Do not intrude into others truly private matters
- Do not invade others' privacy in a manner that might lead to suffering or mental anguish
- If you decide to film or photograph other people, do so in obviously public spaces (and make sure that both you and the subjects you are filming are on public property)
- When obtaining information, draw only from publicly-available documents
- Gain consent (ideally written) from others before filming or photographing them (note that not everyone is considered qualified to give consent- minors and those with mental disabilities might be deemed incapable of consenting to certain things)
Negligent publication broadly addresses sharing information that could cause harm. To avoid being charged with negligent publication:
- Do not provide advice that could harm or kill other people
- Do not offer advice that could cause damage to public or private property
- Do not incite anyone to break the law through your published work
- Include warnings disclaimers along with your work clarifying that failure to follow instructions may be dangerous, there are risks involved in following your instructions, and you are not to be held liable for damages resulting from the use of your advice
- If you provide risky information, include copious warnings and make it clear that you do not recommend anyone "try this at home"
- Be very clear about the dangers that accompany any instructions you provide
- Carefully check advice and instructions you provide to ensure their safety and accuracy
Generally speaking, wait before taking legally risky actions online and be sure to weigh potential gains against potential negative ramifications.
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