Legally Blonde

One of the biggest challenges about having my own business is the legal aspect of things. Filing DBA’s, writing and signing contracts, potential cease and desist letters, you name it, I’ve had to research it in the past few months. Interestingly, as a blogger, I’ve had to do some legal research too.
What? Legal research for a bitty blog? Yes’m. Because any time you, a blogger, do something with a company (giveaway, review), accept ads, or even (gasp!) hire an intern, you’re actually acting as a sole proprietorship and your blog goes from total hobby to a business. Now, there are lots of posts on netiquette and such, which I’m not even going to touch– mostly because many of the people who write about those somewhat arbitrary “rules” don’t actually practice what they preach, and I realllly don’t want to get into that. However, I do want to get into actual rules and laws that could potentially have adverse effects on you and your biz/blog. This isn’t a preachy list of things you should/shouldn’t do…but these are things I’ve learned and that you should at least be aware of as a blogger and businessperson!

Curious? Here goes.

Disclaimer: none of this is actual legal advice. It’s simply my observations and quotes from laws/rules as sourced. If you need legal advice, consult a lawyer- particularly one specializing in intellectual property, copyright, or small businesses.

1. Facebook and contests/sweepstakes. Lots of rules.

Facebook’s promotional guidelines are described in pretty intense legalese buried within Facebook’s help pages. Some important things to note from that are:

  • all contests on facebook MUST be done through a 3rd party app (like Wildfire). That means you can’t do a simple “one commenter wins a free membership!” giveaway, etc., without using an app for administering it.
  • You can’t pick a random page fan/liker to win something… so, for example, saying “if we hit 1000 likes by Friday, one person will win a prize!” isn’t allowed under their guidelines. You also can’t contact a winner of a contest via will post, status update, chat, etc.- basically, Facebook doesn’t allow using any of their functionality to run your own contest (outside of a 3rd party app, as above).
  • This is a biggie that I see violated allll the time- you can’t require entrants to leave any sort of comment, wall post, liking a photo (most likes wins, etc) at all. So other than using a page like as an entry, everything else breaks Facebook’s rules.
  • Also, if you’re promoting your contest on facebook at all (not just running it on Facebook), you have to follow those rules.
Granted, I’m not sure if the mighty hammer of Zuck will come down and smite you if you violate any/all of these rules, but I think a lot of people simply don’t know about em. The more you know! ::cue shooting star:: This post from Social Media Examiner is really good for more explanations.

2. That internship for the super cool blogger/business? Quite possibly illegal.

This post by the NY Times was written in 2010 but still holds true, especially as the economy has gotten significantly worse in many of the industries where these internships are the most coveted. It’s actually what motivated me to write this post- I saw it posted in the comments of a blog post announcing an internship. The comment has been deleted since I saw it (hmm) but the fact remains: in the case of that “job” posting, and many others I’ve seen, the internships they’re offering are illegal. From the NYT piece:

Among those criteria [that must be met for the legality of an internship] are that the internship should be similar to the training given in a vocational school or academic institution, that the intern does not displace regular paid workers and that the employer “derives no immediate advantage” from the intern’s activities — in other words, it’s largely a benevolent contribution to the intern.

The biggie seems to be that the employeer “derives no immediate advantage,” and that’s why I haven’t brought on an intern myself. Doing internships in college, did I do a ton of work that would normally have been done by a junior/associate who was being paid at least minimum wage? You betcha. Did I learn a lot? Definitely not at the level of what I would have learned from a vocational/training program. And fyi, simply requiring an intern to be a student and offering college credit doesn’t clear you legally- if you’re not meeting the six legal criteria, your internship is illegal and they should (legally) get paid.

ETA: Here’s a great post on unpaid (potentially illegal) internships from a year ago by Jessica Hische, who has more talent in her pinkie finger than half of the people I know. And? She wants people to get paid for their work. She=win.

3. Pinterest can be used for self promotion, now.

According to Pinterest’s new terms of service, released earlier this month, you can now use it as a tool for self-promotion. Granted, self-promo can take it from using Pinterest as a tool to being a tool yourself, so that’s something to keep in mind. And plenty of other copyright/legal issues abound there, but I’m sure most of you are sick of hearing about that 😉 But yay- you can now post your own stuff without worrying about getting kicked off!

4. Disclaimers- do em!

Any sort of free product you get and then write about has to come with a disclaimer. Can.not.stress.this.enough. Similarly, paid reviews? Must have a disclaimer. Here’s how I look at this: does your blog make more money than the FTC could potentially fine you for? Chances are, it’s not worth taking that risk. Disclaimer rules also include avoiding being “deceptive” by not disclosing that your posts contains affiliate links– something many bloggers fail to reveal. The FTC blog says, “If you are acting on behalf of an advertiser, what you are saying is commercial speech – and commercial speech can be regulated under the FTC Act if it’s deceptive.” Also, the FTC site says that just putting a general disclaimer on one spot on your blog isn’t sufficient; you should include one every time you have some sort of sponsored/free product post. I haven’t found any bloggers who’ve been specifically target by the FTC for not having a complete enough or obvious enough disclaimer on a particular post, but the possibility of a civil fine is more than enough motivation for this blogger to keep disclosing, all ethics aside. This post from Social Media Examiner is really helpful too.

5. Attribution and IP

Thanks to Donna Queza for reminding me about this issue. Copyright and intellectual property law are insanely hairy, and I’m not even going to attempt to get into them on here. However, if you ARE using images from someone else’s site on your blog, give them proper credit. In short, that means finding the original link to the picture (PINTEREST IS NOT A SOURCE!) and, to be the most courteous, linking both the image and a text hyperlink back to the original link. Technically, using someone’s image without their express permission is illegal. However, “fair use” takes into account how the image is being used, and if you’re not profiting from the images, it may fall under the fair use category. Fair use is a very very gray area- especially as the internet and the way we share information changes daily. Old schoolers will tell you that because it’s not used for educational purposes, that it’s absolutely a violation of copyright law and therefore not under fair use. However, after chatting with two lawyers (one who specializes in IP), I’ve found that it’s really not that cut and dry- especially when it comes to blogs and that situations deemed legal vs illegal are constantly evolving through case law. (Legal enough for ya?) Part of fair use means that you can’t copy a work in its entirety, no matter of how you’re using it: so no complete recipes, entire blog posts, etc. That part is black and white. The rest, though, depends on 4 fair use factors that are looked at when fair use/copyright cases go to court. For more information on that, take a look at this site from Stanford (I know, I know- I’m loathe to link to them, but it’s a good site regardless.)

So, that’s a lot of legal and site-specific information. It gets mind-boggling, I know. Maybe it’s the perpetual student in me, but I feel like it’s better to have too much information than to walk around blissfully ignorant. Though sometimes blissfully ignorant sounds nice, right? I’d love to hear if any of you have run into these issues with your own blogs- have you given/received takedown notices? Scary legal letters? Couldn’t care less?

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0 thoughts on “Legally Blonde”

  1. Thanks for the info! There are so many issues to learn about when you’re running a business, it’s generous of you to share what you’ve learned. I’ve been thinking about bringing on a part time person and everyone I talk to says, “just hire an intern.” As a person who did a number of internships, I feel a huge responsibility to provide any intern with tangible skills that he/she can use at a full-time gig. But, it’s good to know that that’s not just good karma, it’s the law. I’ll definitely be doing more research before I made a decision! 

  2. Great post and excellent point about netiquette blog posts. I do have a question about disclaimers and affiliate links. For example, is it ok to say on a disclosure page that all amazon or shopstyle links are affiliate links or does it need to be disclosed on every single post? I always wonder about that. Also, I personally think it is sketchy how many people put affiliate badges with their sponsors. It really makes it look like a store is sponsoring the site, when really it is just an affiliate link.

    1. You’re welcome, and thank YOU! And have I mentioned (ever) how much I adore your site? One of the few non “industry” (ie, smashing mag, design work life, etc) blogs that I still read daily 🙂

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