Writers Beware: Top Tips for Posting Online

13 March 2019
Posted by Jennifer Tutty

It is now easier than ever to write a quick blog post, article or story and share it with a myriad of readers from all over the world with the click of a button.  However, with speed can come error!  So before you post away, make sure you read and keep in mind our top legal tips for online writers.

Are you infringing third party copyright material?

Copyright protects original literary, dramatic, artistic and musical works and grants the owner the exclusive right to do certain things with their copyright material.  For example, a song-writer will have the exclusive right to make a recording or adaptation of their work amongst other things. For text, photographs and other artistic works, copyright lasts for the life of the author plus 70 years.

Before self-publishing, make sure you carefully check through your writing to assess whether it contains any third-party copyright material.   If it does, you should remove the copyright material from your writing unless you have obtained a copyright licence from the owner or an exception applies (for example the material is used for reporting the news, criticism or review or parody or satire – noting that exceptions can be hard to fall within).

Are you defaming anyone?

In Australia, defamation law is based on the “common law”, as modified by each state’s Defamation Act.  The general test for defamation is there must be a statement published which is referable to a person that would cause an ordinary, reasonable person to think less of that person. A person does not need to be named to be identifiable and the circumstances and surrounding information may be enough to identify the person.  Corporations cannot sue for defamation, unless they are a non-profit; or they have fewer than 10 full time employees and are not related to another corporation.

When you are writing about people or groups that can be identified, you need to consider whether you may be defaming them.   The easiest way to avoid a claim for defamation is to obtain the consent of the person who is identified by the statements.  When a claim for defamation is bought against a person, there are various defences, including justification, absolute privilege, public document, honest opinion and triviality.

Are you in contempt of court?

Contempt of court is an umbrella term which applies to a variety of kinds of conduct that generally undermine or threaten the integrity or authority of a court. It can be committed for example, where there is a breach or contravention of a court order or where statements are made that “scandalise” or denigrate the court or an officer of the court.  It is very important especially when reporting or writing about current affairs that you are across any court orders that may apply to the disclosure of certain information (for example a name suppression order) and strictly comply with them.

Are you breaching any obligation of confidence?

Whilst publishing ‘revenge porn’ is never recommended and you may end up in court, there are plenty of other ‘secret squirrel’ topics that may be best left out of your story.

There are two main ways in which disclosing confidential information can result in legal problems.  The first is where there is a contract between the parties which restrains them from disclosing certain information and the second is where there is an equitable obligation of confidence (i.e. you received information in a private meeting or from someone who told you it was confidential).  Before blurting out your heart and soul to the world, you should stop to consider whether any content in your publication was in fact disclosed to you in confidence. If the information is not in the public domain and you can’t get consent from the discloser, it’s probably best left out.

Are you infringing a person’s moral rights?

Put simply, moral rights are personal rights that connect the creator of a work to their work.  They are the right of attribution (the right to be credited), the right against false attribution (the right to stop non-creators from being named as creator of a work) and the right of integrity (the right to stop others from dealing with a work in a way that hurts the creator’s reputation).

If you use another person’s work in your writing or post, in addition to consideration of copyright matters, you must ensure you correct credit them and not treat the work in a derogatory manner.   To get around this, you may obtain a consent from a person that allows you to use their work in a manner that would otherwise infringe their moral rights.

Still have questions? If you are an author, blogger, journalist (or any other kind of writer in need of legal advice), talk to us!  Please contact us on 03 9521 2128, or email us at hello@studiolegal.com.au.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.