New Media & The Law

Overstock Joins Amazon in Pulling California Affiliate Programs

Overstock.com has joined Amazon in the mass exodus to drop California affiliates and avoid charging sales tax to consumers in that state – all as a result of a new Internet state tax law. Who will be next? And what will happen to California bloggers, podcasters, and other sites who rely on this revenue as income?

While a huge majority the 25,000 affiliates won’t, or can’t afford to, up and leave the state – many will have no choice, especially those with a larger amount of employees.

“This law won’t impact Amazon that much but it is a crisis for website owners who make revenue by placing ads on their websites for thousands of online retailers,” says Rebecca Madigan, executive director of the Performance Marketing Association.

Experts say it could impact 20-30% of small business website revenue – but I think it depends on the industry and blog. Some websites will see their income slashed completely, while others won’t even see a bump. Review sites rely heavily on their affiliate advertising, while entertainment blogs rely mostly on advertising sales and Google Adsense.

And who knows if it will actually help the state of CA? Proponents of the tax claim the new law will raise $317 million in revenue a year. But other states have seen quite the opposite. Those that have implemented similar tax bills have seen the entire thing backfire, says John Henchman of the Tax Foundation. In fact, Rhode Island officials reported that their overall tax collections fell when the affiliate contracts were terminated.

How is this new law impacting you? Do you live in a state with a similar Internet sales tax law? Are you concerned that your state may implement it next?

Image Source: SXC

Custody Order Requires Father to Take Down Blog

Author: erlindawardill

Last week a judge in Bucks County, PA required a father to take down a blog under threat of incarceration and/or risking losing custody of his children.

The blog, ThePsychoExWife.com (which is currently down), was created in 2007 to attract others going through difficult divorces and custody situations – offering support and information via forums, news, and articles. A portion of the site IS dedicated to telling a story, based on true events, regarding a very contentious divorce and custody battle with the father’s ex-wife. But the father claims no ownership of the blog.

Judge Diana E. Gibbons issued the following order:

Father shall take down that website and shall never on any public media make any reference to the mother at all, nor any reference to the relationship between mother and children, nor any reference to his children other than “happy birthday” or other significant school events.

The father – who chose to remain, and continues to remain, anonymous through the entire process so as not to involve his children – plans to file an appeal on the grounds that his civil rights (including the 1st Amendment) have been violated. And the results of this appeal will be crucial to the future of parenting, divorces, custody, and children. It could impact your social media usage as a parent – pictures, Twitter updates, blog posts, everything.

Whether or not you agree with the father telling the particular stories on the blog, this does bring up a larger issue of what you can and cannot post on social media sites and forums.

As Save ThePsychoExWife.com says: We must win this appeal in order to protect our freedom of speech – just because you are divorced doesn’t mean you give up your civil rights … We must stand up to this violation of the First Amendment. We must protect our freedom of speech and not allow family judges to use our rights against us when deciding custody.

You can learn more, read the judge’s orders, and offer your help at Save ThePsychoExWife.com.

Can I Use Someone’s Name and Logo? Yes (Sometimes)!

Author: salvadorbegley

… by Olivera Medenica (Wahab & Medenica LLC)

When you think of your favorite blogs, chances are at least one entry probably contains either a review, sarcastic comment or some allusion to a trademarked product or service. We take it for granted that consumers have the right to voice their opinions on pop culture, including registered commercial brands. This privilege of free speech is afforded to us by the First Amendment, and it is broad enough to encompass the use of a commercial entity’s trademark. But this freedom of speech is limited by a trademark owner’s property rights, and it is a complicated set of rules that apply whenever a blogger decides to incorporate another’s trademark into their blog, especially where the trademark is famous.

While you can’t use someone else’s trademark in your domain name or blog to sell a competing product, you are permitted to use their trademark to criticize the trademark owner or its products. Similarly, you are permitted to use their trademark for comparative advertising (i.e. “my stuff is better than yours, [insert trademark name here]”). This is called the “nominative fair use” defense to a trademark infringement claim. Courts have imposed a three part requirement test that must be met in order for you to take advantage of the “nominative fair use” defense: (1) the trademark owner, product, or service in question must not be readily identifiable without use of the trademark; (2) you must use only as much of the mark as is necessary to identify the trademark owner, product, or service; and (3) you must do nothing that would suggest sponsorship, or endorsement by the trademark owner. As long as the reference is essential to relating any aspect of the trademarked merchandise or function to your point, it falls under “nominative fair use.”

So what would be examples of nominative fair use? If a newspaper uses the “New Kids on the Block” trademark to create a survey asking readers questions about the group’s popularity. In that instance, the newspaper would not be able to conduct the survey without mentioning the group by name (yes, a pop band’s name can be trademarked). Similarly, a newspaper can mention the “Boston Marathon” by name in order to report on the Boston Marathon (for the same reasons I just mentioned). A photographer can also use “Barbie” dolls in a parody photograph criticizing Mattel’s famous doll and the value that she represents. Similarly, you can use the domain name www.barbiesucks.com in order to criticize Barbie, support feminism, or some related cause and so forth.

The problem arises, however, when the use of the trademark is not an absolute necessity for you to make your point. For example, a sporting good store located next to Madison Square Garden that runs an advertisement with the NY Knicks logo, or a parking garage located next to Citi Fields that prominently displays the NY Mets logo to attract customers are inherently problematic. Similarly, a dry-cleaning business that prominently uses the Ugg logo in its advertisements to demonstrate that it cleans Ugg boots might be problematic – especially where the same message can be done without the use of the trademarked logo.

The issue is one of association; you must avoid giving the impression that the trademark owner is in any way affiliated to you. So mentioning a trademark owner’s product or service in your blog for news reporting, criticism or parody is fine. But mentioning it for the purpose of attracting users and potential customers to a competing business is problematic. For example, using the “Walmart” trademark to criticize its products is fine, but doing so as a prop to sell goods or services unrelated to the trademark owner is problematic (e.g. by providing a link to another store, or pushing the products on your site).

What it really comes down to is your contribution to the discussion. If the use of the trademark is gratuitous and used for commercial purposes, then that use may result in an unfriendly letter from the trademark owner’s law firm. If the use is non-misleading and for critical or news reporting purposes, then your use is permissible no matter how much it annoys the trademark owner.

Olivera Medenica is a partner at Wahab & Medenica LLC, a New York based law firm that focuses on New Media and Intellectual Property law – both from a transactional and litigation perspective. She has represented software developers, bloggers, content creators, social media marketing companies and many others. She has lectured in a variety of venues from Harvard Law School, Brooklyn Law School, Pace University, New York Law School, Cardozo Law School, Manhattan School of Music, the School of Visual Arts to the New York City Bar and New York County Lawyers, as well as Lawline.com, Wikimania 2006, and South by Southwest Interactive 2011.

Can I Use This in My Blog? Legal Issues With Copyright

Author: salvadorbegley

… by Olivera Medenica (Wahab & Medenica LLC)

Bloggers are praised and criticized for the content they publish. Whether you are a newly minted blogger or a veteran, you may have noticed that bloggers sometimes get in trouble for what they publish. Just like journalists, bloggers have to make a judgment call as to whether to include a piece of information. For example, if you quote another article, how much should, or can, you quote? Can you use a picture from another online publication? What if the picture is of someone famous?

The good news is the First Amendment protects a lot of information that you post online. Freedom of speech is one of the cornerstones of our Constitution. That being said, the Constitution also empowers Congress to “promote the Progress of Science and useful Arts” – a congressional right that resulted in much of our copyright jurisprudence. In other words, just as much as you have the right of free speech, so do content owners have the right to protect and restrict the use of their content. So what is permissible, and what is not?

It really just depends on whether your use is considered a “fair use.” There is a multi-factor test you can apply to see whether your use is permissible, which I have included below. But to summarize the issues, “fair use” means you can use someone else’s materials for purposes such as criticism, comment, news reporting, teaching, scholarship, or research without infringing the copyright in those materials. So if you’re commenting on, or making fun of, someone else’s work (whether it be a picture, text or piece of art), the more likely your use constitutes fair use. This is often referred to as “transformative use.” For example, commenting in a blog post about a famous politician’s indictment and quoting a local newspaper’s take on the issue, is “transformative” as long as you are not just copying and pasting a bunch of paragraphs from the article to make your point. Conversely, including a picture in your blogpost from that newspaper article just to make your blogpost look better, might be problematic if the picture is not an essential element of your commentary.

If it sounds too vague, then it’s probably because it is purposefully vague. There are no clear cut guidelines, but there are certain questions you can ask yourself:

What is the purpose and character of your use (of the material)? Transformative uses (i.e. commenting, reporting, teaching, scholarship etc.) are better than mere copying.
What is the nature of the copyrighted work? Is it fact or fiction? Creative, fictional, works get more protection over facts. The facts that a basketball star was arrested, or a country is defaulting on its financial obligations, are just that: facts. There are only so many ways you can word something that happened.
How much of the material are you planning on using? If you’re copying a limited amount, then it’s fine; if you are copying a whole chapter or article, or the vast majority of it, then that is not ok (even if you consider your blog post to be ‘reporting’).
What is the effect of your use on the potential market for the material used? If someone can just bypass reading the major newspaper by reading your blogpost, then that is a problem. You cannot substitute your work for that of the original work. It’s ok to criticize, or parody, something, but you cannot merely reproduce the work in its entirety. And if it is imperative for your audience to read the original material in its entirety to understand your point, then it’s better to quote a little and just provide a link to the original material.

In the end, just use good judgment. Remember, your blog is about your opinion, your work, your reporting, and that is what makes blogging so uniquely valuable to your audience.

Olivera Medenica is a partner at Wahab & Medenica LLC, a New York based law firm that focuses on New Media and Intellectual Property law – both from a transactional and litigation perspective. She has represented software developers, bloggers, content creators, social media marketing companies and many others. She has lectured in a variety of venues from Harvard Law School, Brooklyn Law School, Pace University, New York Law School, Cardozo Law School, Manhattan School of Music, the School of Visual Arts to the New York City Bar and New York County Lawyers, as well as Lawline.com, Wikimania 2006, and South by Southwest Interactive 2011.

Removing the Legalese from Contracts for Bloggers

Author: danelleeklund5

In any circle of friends, I believe it is a universal truth that friends will ask questions of the friends in different occupations. I have certainly asked questions of my friend’s husband, who is a plumber. I always ask questions when I see my Realtor friend.

If there are any other lawyers reading this, I’m sure you get the same treatment that I get. I am expected to know every area of law for every state in the country. (That’s just for family.)

Even though I started blogging during law school, I didn’t go to my first conference until last year. There, I got a new set of legal questions that I had never heard before. It’s a conference, so business cards are exchanged and relationships are formed. Then I got questions via email about general things that I expect to see: entity formation and intellectual property.

Next, people asked me to review pieces of contracts for them. The emails would look something like this:

Hey, Danielle, All of this looks pretty standard, but I am concerned about paragraph 13.

Fortunately, they sent the entire contracts. Since these are typically contracts with brands and ad networks, the contracts are under five pages, so I would read the entire document. Paragraph 13 was generally something very safe, like the Choice of Law paragraph, which dictates which jurisdiction any lawsuits a case regarding a breach of the contract might be brought in.

However, other “standard language” that I’ve seen has included:

Requirements that a blogger carry a general liability insurance policy to protect the advertiser from any potential lawsuits that could occur as a result of the advertisements;
Terms with unclear end dates and no ability to terminate the contract by either party
Indemnity provisions that have bloggers covering the defense of a brand in the event of any lawsuit related to the contract, not just if the blogger is negligent;
Unclear definitions of what the blogger will be doing (A contract is the place where it should be made clear!); and
Overly broad and ambiguous non-compete provisions.

None of these terms are standard and I pointed out each provision and told the individual to talk to the maker of the contract about the terms.

I’m not a lawyer who likes to add “said,” “hereto” and “herein” to every paragraph to make my documents sound more official, but there are many lawyers who prefer to use legalese. And, unfortunately, a lot of small brands and ad networks use forms that they have found online and they try to tailor them to their needs without seeking legal counsel. These forms use legalese more than lawyers do.

It is critical for bloggers to master the basic provisions within contracts so that they can negotiate the best contracts for themselves. For a shorter contract, it may not be necessary to retain a lawyer to review the document for you, but you should feel like you’ve had the help of a lawyer reviewing it. Understanding the legalese in contracts will help bloggers cut through what looks like boilerplate and get to the heart of the contract. Most importantly, it ensures that bloggers understand and agree to the actual terms in the contract.

Image Source: SXC

Do the Huffington Bloggers Deserve to Get Paid?

Author: elkecarvosso6

Today, I am saying something that I thought I’d never say: freelance writers don’t deserve payment. Before I start getting hate mail, let me explain. I don’t mean all freelance writers – just the ones in this story.

Earlier today, former Huffington Post blogger Jonathan Tasini filed a class action lawsuit against The Huffington Post, AOL, and co-owners Arianna Huffington (pictured at left) and Kenneth Lerer on behalf of thousands of writers who have blogged for the online publication over the last several years. He’s asking for $105 million, about a third of the site’s sale price in the recent AOL deal, which comes out to about $11,500 per writer (if split evenly, though I’m sure it would be based on post count). To date, they haven’t seen a dime.

The Huffington Post does have a staff of paid writers as well, who are not as part of this lawsuit as far as I know – this lawsuit it specific to the blogging “staff” (or better put, the blogging volunteers).

According to Tasini, the bloggers working for the site “are merely slaves on Arianna’s plantation. We do all the work and she won’t share a dime.”

Here’s the key point he’s missing, though: slaves are forced into labor. Not a single blogger at The Huffington Post was forced to write anything or, as far as I know, led to believe that they would ever get paid. I actually looked into getting a blogging job with them several years ago and decided against it for that exact reason – they weren’t offering payment.

What The Huffington Post offered bloggers was exposure. They gave writers the ability to blog about topics they enjoyed at a site where there was built-in traffic (i.e., the site already had traffic, it wouldn’t be like starting a new blog where you’re relatively invisible). In my experiences, “exposure” is rarely worth the work you do, but that’s a choice everyone has to make for themselves. I’ve certainly taken jobs at lower rates than I would normally accept because I knew it would be good exposure or look good in my portfolio. Doing so doesn’t mean that I have the right to sue later because I see someone making money from my work.

Look at it this way: Let’s say that I’m building a restaurant and I find someone willing to sell me beautiful tiles for $100 when it would typically cost several thousand. Years later, if that restaurant is a massive success and business is booming, in part because people like the decor, that tile seller doesn’t have the right to come back and demand more money. He named his price. I paid it. Transaction over. That’s capitalism – buy for the lowest price possible, sell for the highest price possible.

The Huffington Post bloggers, by agreeing to their contract, named their price: nothing. The Huffington Post paid it. Transaction over. Do I believe that it is right for a writer not to get paid for his/her work? No – unless you agree to work for free.

I’m not a lawyer, so I don’t know how this will end, but I actually hope that the writers don’t get any money. It’s not fair, in my opinion, to agree to do something for free and then send and invoice later. What if, for example, I accept a guest post from somebody and later they come back and demand payment? It’s not a far stretch from this lawsuit, and that scares me as a site owner.

What do you all think about this lawsuit? Do you believe that the Huffington bloggers deserve to be paid?

Photo via Flickr from Pete Wright

Internet Sales Tax Back in the Mix

Author: erlindawardill

We’ve all heard this argument before – that retailers need to pay local sales taxes for online purchases … and it’s about to be thrown back in the political arena. Democratic Senator, Dick Durbin, is set to launch a proposal next week mandating that online retailers collect a local sales tax for all transactions – regardless of where the business resides. This Main Street Fairness Act would impact everyone from Amazon and iTunes to smaller independent websites. So if you’re a blogger selling your ebook, or t-shirts, or any other product – you should probably take note!

Local Sales Taxes Durbin has been pushing for the proposal since February. In a speech in Chicago, Durbin complained that online businesses should be subject to the same taxes local brick-and-mortar stores pay. He said, “Why should out-of-state companies that sell their products online have an unfair advantage over Main Street bricks-and-mortar businesses? Out-of-state companies that aren’t paying their fair share of taxes are sticking Illinois residents and businesses with the tab.”

The entire tax system is very convoluted, and many small retailers don’t even know they are currently required to pay sales tax for online purchases. The “Use Tax” requires they pay their own state’s sales tax rate – even when shipping to another state.

According to this informative article on CNET: Paul Misener, vice president of public policy for Amazon, says his employer isn’t necessarily opposed to such legislation–as long as it’s crafted very carefully. “We’ve long supported a truly simple, nationwide sales tax system, evenhandedly applied.”

I have to agree. I’ve researched databases of local sales tax rates, and they are in depth, expensive, and constantly changing. I can only imagine the amount of small businesses that would drop their onlinestores if they had to purchase this database and implement the system for automated tax calculation. A simple nationwide plan is a must.

What do you think?

Image Source: SXC

Rumors and Non-Disclosure Agreements

Author: danelleeklund5

On Saturday, Mashable added another rumored feature to the growing list of iPhone 5 modifications. The CEO of Sony, Sir Howard Stringer, confirmed that Sony is manufacturing a camera sensor that will be used in the iPhone 5. Production of the sensor has been delayed due to the tsunami and earthquake in Japan. It is now assumed that there will be an 8-megapixel image sensor for the iPhone 5.

Danielle Liss While most people were looking at the infographic summing up the rumored iPhone features, I was thinking about non-disclosure agreements. (I have an Android phone; I’m not always in lawyer mode.) If this was truly a slip, Stringer could be facing serious consequences if there was an NDA in place. But, as Calvin Lee of Mayhem Studios was quick to point out on Twitter during a brief discussion, no one ever seems to get sued when these Apple leaks happen. So, no NDA or planned?

Non-Disclosure Agreements
NDAs are contracts between two or more parties, companies or individuals, that define confidential information and how access to confidential information should be restricted. This type of agreement is frequently used to protect trade secrets, which are generally not known to the public and by which competitors could gain an advantage if such information was made public.

An NDA may be used by companies that are considering entering a business relationship, but wish to protect their confidential information until a final determination is made. In some cases, employers may use NDAs with their employees.

Contents of a Non-Disclosure Agreement
The NDA must define who is a party to the agreement. Next, the NDA will typically define what is considered confidential information. It is important to note that information that was already available to the public will not be considered confidential. The parties may agree to other terms that tweak the definition of what information was public. If a dispute arises, the definition of public information could play a critical role in resolving a dispute.

An NDA must also define what the confidential information may be used for and how it should be maintained. It is common that an NDA will request that confidential information be returned if the parties sever the business relationship.

NDA agreements often contain a provision for liquidated damages. If the NDA is violated, there will be a set figure that the violating party is required to pay.

The Impact on Social Media
NDAs are commonly used between brands and the bloggers who promote them. If you sign an NDA, ensure that you only share the information that you are permitted to disclose. Do not share any future advertising campaign information or product releases with your audience or even your family. Don’t try to bolster your SEO by using keywords for a future campaign that is about to be released that you have inside information on. This type of activity could easily backfire, leaving you in breach of the NDA and with a severed relationship with your brand.

Conclusion
NDAs are commonly used. If you have questions about the terms, ask before you sign. Most importantly, protect the confidentiality that you’ve agreed to and you shouldn’t have any problems.

Knock, Knock. Who’s There? We’re Not Really Sure. Might Not Be Toyota.

Author: salvadorbegley

… by Lucretia Pruitt

The masthead at the top of the page reads Dear Crissy: Momhood Captured

A classy and pretty blog that takes you through the days and experiences of one mom – Crissy. Her picture and her family’s hang to the upper right of the page serving as both guardians and a reminder that you are here on her site. Someplace that there are adults, kids, possibly animals, lessons to learn, things to be reflected back on. From the design of the site? You know you’re on a bona fide Mommy Blog here.

Do you want to know about Crissy? Click on the About link – she’s pretty open. You think you’re here for ADS & PR? Open that link right up – it’s clearly visible on the page.

Dear Crissy is a PR-friendly blog, and while I am happy to accept all pitches, I am more likely to respond if you address me by my name (brownie points if you spell it right), and demonstrate that you have taken a moment to familiarize yourself with my blog. That said, let’s talk! dearcrissy@gmail.com.

Well now, that makes sense. If I were a PR or AD gal, or even a brand representative, looking to know if we could work with her? There it is in a nutshell.

You know what it doesn’t say though?

It doesn’t say what sets Crissy off. Namely: being treated by a would-be client as if she’s cheap, unskilled labor – simply there to be taken advantage of by anyone clever enough to make it sound like they’re doing her a favor. Worse if they think she’s too stupid to know that she’s being used.

It actually sets anyone off. But, if you’re a professional blogger? You lose count of the number of times you have to explain to someone that ‘no, you don’t work for free‘, and ‘no, not for “exposure” but for actual money, although you might be willing to consider a product to review and keep if it were something you’d consider buying anyways‘ and that you are smart enough to know the FTC regulations that pertain to your industry, and you will be disclosing it, and you won’t have words put in your mouth.

You move from patiently treating folks as if they just need a little education on the subject, to frustratedly realizing that if you have to be educating them on those very basic concepts? They shouldn’t be working in blogger outreach.

So recently, when Crissy Page opened up yet another email pitch (she gets many of those, daily – because she’s a good blogger with a large audience that is fairly engaged) she was perhaps not surprised, but truly offended to read the ‘pitch’ that was inside. In her own words:

Toyota wants to give me a $10 Amazon gift card to post some of their recent “positive news” on my blog, Tweet it to my 32,000 Twitter followers, and give a whole slew of their videos an endorsement on YouTube. Seriously, Toyota? I mean, seriously?

It appeared to Crissy – and a lot of people who later read the contents of the email pitch she received posted in its entirety – that Toyota was offering to pay mom bloggers $10 a piece to bury recent bad press.

So then the blogging began – which is what bloggers do. They write about stuff they think is relevant to their readers.

Crissy’s post about it here not only included the email, but her reactions, and a link to a blog post from fellow mom blogger, Amanda Henson, over at High Impact Mom who had pointed out that a recent television ad by Toyota which had the line “we don’t make cars for magazines, or road tests, or bloggers – we make them for you…” was less than friendly to bloggers. Crissy said that she had nothing against the woman from MommyNetworks.org who had sent her the bad pitch but stated “I have no idea how much she was compensated by Toyota to recruit mom bloggers in this scenario. I can only assume it was more than a $10 Amazon gift card.”

News of Crissy’s post started spreading quickly. Other blogs started picking up the story and the Twitter hashtag #ToyotaFail began showing up in Tweets about the incident with links back to her post. Toyota’s social media team was paying attention though, and put up a tweet quickly using the hashtag to make sure it showed up on the “Twitter Channel” folks were listening to that read “Have found no contracted affiliation w/ mommynetworks. We don’t support this type of outreach. Getting to the bottom of this.^SD #toyotafail”

At around the same time Samantha Snyder, the owner of Mommy Networks, contacted Crissy by email stating that she had no professional affiliation with Toyota, but had initiated this program on her own, because she was both a loyal Toyota fan and because she thought she could use it as a ‘case study’ for Mommy Networks to attract new customers.

Some skepticism at this idea naturally arose in the comments section of Crissy’s post (which was updated to reflect new information as it came flying in.) The question as to where the money for the $10 Amazon Gift cards was coming from has yet to be answered. But Samantha’s presence in the Comments section defending her actions brought a new question into focus: if Samantha had no relationship with Toyota – how was a blogger supposed to know if the pitch coming her way was legitimate?

Christy, who blogs at ShakeTheSalt.com, commented that “Between this and the Lansinoh thing, I’m thinking companies need to figure out who they are and are not working with.”

Wait, what? Lansinoh? What Lansinoh thing?

A little digging on Google brought to light another such blogger/brand incident that occured recently over Lansinoh® breast pumps. It appears that Jennifer McKinney (also known as @mckmama) had posted a giveaway on her blog of 4 Lansinoh® Affinity® Double Electric Breast Pumps. From what can be ascertained by reading Lansinoh’s official response to the incident here and on Ms. McKinney’s post about the incident here – it seems clear that a PR agency had given Ms. McKinney the pumps to give away. Lansinoh claims it was done without their knowledge or approval. Ms. McKinney claims she has emails to the contrary. No one seems willing to name the mysterious PR agency/3rd party that acted on behalf of Lansinoh to offer Ms. McKinney the 4 pumps (valued at around $600.) What is not discernable is why Lansinoh felt that it needed to say “Lansinoh does not support or endorse the blog My Charming Kids or @MckMama” while admitting that their agency did in fact supply her with them.

A little more digging brings up a site that seems to be dedicated solely to exposing issues with Ms. McKinney, and from their own post on the matter here? They seem to have had a hand in bringing about Lansinoh’s awareness, the initial tweeted responses that Lansinoh was not affiliated with Ms. McKinney, her site, or the giveaway, and in part, the final statement that it was a “3rd party” who was responsible.

Let’s talk just a moment here about agency, shall we?

We social media types throw the word agency around a lot when we’re talking about who does what, and what kind of company is responsible for what kind of work. But the term “agency” has a very specific, legal meaning in the U.S. The wikipedia entry for agency reads:

The law of agency is an area of commercial law dealing with a contractual or quasi-contractual, or non-contractual set of relationships when an agent is authorized to act on behalf of another (called the Principal) to create a legal relationship with a Third Party. Succinctly, it may be referred to as the relationship between a principal and an agent whereby the principal, expressly or impliedly, authorizes the agent to work under his control and on his behalf. The agent is, thus, required to negotiate on behalf of the principal or bring him and third parties into contractual relationship. This branch of law separates and regulates the relationships between:

* Agents and Principals;
* Agents and the Third Parties with whom they deal on their Principals’ behalf; and
* Principals and the Third Parties when the Agents purport to deal on their behalf.

Unless you’re a lawyer or just dig legalease, that sounds a little complex. So I’m going to put it in lay terms:

When a brand hires any “agency” whether it’s a PR agency, a Digital agency, or Social Media agency, the brand representatives sign papers with that agency that let them negotiate or contract with other people on the brand’s behalf.

This means that when a blogger is working with Bob’s PR Agency on a campaign for Susie’s Widgets, Bob is working as an agent for Susie to hire the blogger.

You see, too many bloggers have absolutely no background in business. They are writers and community builders and dang good ones. But that doesn’t mean that they automatically know that an “agent” has specific legal powers and responsibilities.

When the whole #ToyotaFail event came to the attention of Scott DeYager (@ScottDeYager) of Toyota’s social media team, the first thing he did was try to contact the folks at MommyNetworks to find out who she was working with. “@mommynetworks Hi there. Wondering if you could DM me who (if anyone) at Toyota contracted you to seed the Toyota news. Thanks.”

One of the first things the folks at Lansinoh did was try to track down who, if anyone, was working with Ms. McKinney.

The reason for this is that if an agency contracted someone to work on your behalf? You can end up legally responsible for whatever they say or do in your name. Because, signing a contract with an agency giving them the power to create agreements with bloggers is the same as if you hired them yourself when it comes to legal stuff.

So who is responsible for what then?

Well, usually in cases like this if there are damages (another legally specific term), the lawyers and the courts start getting involved. And then it comes up to them to determine what the damage was, who was responsible, and whether or not the problem can be fixed (remedied) or can only be punished (punitive damages) in order to discourage people from doing it again.

In the instance of Jennifer McKinney and Lansinoh? According to her post, it looks like Jennifer is not taking any further actions. Lansinoh hasn’t said anything other than they’re “looking into their approval processes” which likely means that next contract with the PR agency they hired is likely to read a little differently.

On the Toyota-MommyNetworks front, as of the writing of this, Ms. Snyder had replaced her MommyNetworks.org site with an apology of sorts. A letter to Crissy & Toyota that reads a little bit like an admission, and a still a bit like an accusation that somehow this is Crissy’s fault.

She expresses the hope that everyone will just leave her alone now. And while it’s a nice idea to think that you can just say “oops, I’m sorry, I’ll stop. Go away now” – that depends entirely on what Toyota’s legal department will have to decide (and also that of Care.com’s – who on a sidenote was dragged into the mess due to a copyright in the footer of mommynetworks.org. One that Ms. Snyder said was ‘there when she bought the template from her designer.’) The negative PR that arose from this incident may or may not be overlooked by the companies it hurt. Since they were apparently the unwitting victim of this ill-conceived idea, they may not be so willing to let Ms. Snyder off the hook lest other bloggers think that they can do the same without consequences.

The fallout from the whole thing has yet to be felt.

As a result of things like this? There’s the question in blogger’s minds about who they can and can’t trust. If a pitch comes from an agency, will the brand back it up? Lansinoh didn’t back up Ms. McKinney. If the pitch comes from someone who not only isn’t an agency, but also has no relationship with the brand – how will a blogger know it’s not legit? Should their FTC mandated disclosures include the PR agency that hired the blogger on behalf of the brand?

And over on the brand side — How are you to protect yourself from well-meaning bloggers? Toyota did nothing in this case yet was the focus of a flurry of negative PR. Do the brands know who the agencies are contracting with on their behalf? Are they included in the conversations and emails of the agencies and bloggers? How much more work is it going to cause if they have to micromanage the agencies they hired so that they didn’t have to do this themselves? What about the bloggers who need to verify if someone is working on their behalf – is there an obvious point of contact for them within the brand?

Christy over at ShakeTheSalt.com says “I do not think it falls on the blogger to fact check a PR reps claims that they represent XYZ brand. The chance of false claims from a PR rep about who they represent is slim to none. Campaigns are not cheaply run and the product has to come from somewhere when product is involved.”

Kelby Carr who runs her own blogger network at TypeAParent.com commented on Crissy’s post “This is very scary…One, it is really disturbing that someone can slap up a site and start pretending to represent major corporations, and ask mom bloggers to do ethically questionable things for $10 gift cards. Two, I think there is a lesson in here for companies. Toyota is smart and clearly monitors the discussion about their company in social media. What about a company that doesn’t? That isn’t on Twitter and pays no attention to blogs? The truth might have never come out.”

There will be a period of mistrust on both sides of the fence after episodes like these. Which is sad, because they really need to be working together to make things work well. The question of who should bear the burden? Well, I guess that depends on who stands the most to lose. At the moment, that pretty much looks like everybody.

The Bravery Behind Blogging

Author: elkecarvosso6

This past Friday, I was moved to write about the happenings in Egypt and the ways in which social media brings situations like this to a larger stage in a post that I called Social Media’s Role in the Egyptian Protests. Someone left a comment that has been stuck in my mind for two days now: Can Aka noted that my post was “very brave.”

At first, the notion that something, anything, I wrote being brave seemed strange to me. I certainly didn’t feel brave writing it. I felt like I was trying to do something good, to spread a message of hope to my readers, but brave implies that I was afraid, that it took courage for me to write the post. And it didn’t.

But maybe I’m being naive. Maybe blogging is brave. Maybe we should all be afraid, at least a little.

The Right to Blog

In Egypt, the Internet has been shut off. As far as I can tell, the people still do not have access, and it was fairly easy for the government to do. When their access started to be limited, late last week, and then slowly it disappeared altogether, I saw a lot of people on Twitter and Facebook talking about how they are thankful they live in a country where something like that could never happen.

Couldn’t it?

Those of us in America are especially vocal about our freedom of speech rights, and while I think the law pretty clearly allows us that freedom on a blog, does the law require the government to ensure that we have access to the Internet or to any specific site? I’m not a lawyer, so I can’t answer that, but it sounds like the ability to own and run a blog is more of a privilege than a right.

The Consequences of Our Words

This goes deeper than government control, however. In North America and Europe, it may seem unfathomable to think that the government can just shut own blogs willy nilly. But that doesn’t mean that everyone will like what we have to say. Rhetoric can be a dangerous thing, and I think as bloggers, we’re really vocal without understanding the power of our words sometimes. Think about all of the talk surrounding Gabrielle Giffords being shot, and media outlets examining the role that politicians and journalists have played in the current political atmosphere of hate. We may not be journalists, at least not in the traditional sense, but we do have readers who follow our advice.

Let me ask you this – what would happen if one of the more popular bloggers out there, someone with hundreds of thousands or even millions of fans, snapped and wrote a piece slamming another blogger? Would that blogger get virtually attacked by fans? Yes, it is safe to say that people would react to support their blogging idol.

What if the first blogger said in his/her post that the other blogger deserved to die? Would someone pick up a gun?

That’s a scary thought, isn’t it? I would like to think the answer is no, but I just don’t know. I don’t know that someone with strong supporters doesn’t have that kind of fan, that slightly “off” person who thinks that violence is one way to solve a problem. I don’t know.

And the problem is that we are extremely outspoken to the point of exaggeration sometimes. If you ever watched Keith Olbermann’s show on MSNBC (before he left earlier this month), you know whtat he did this feature called “The Worst People in the World.” Were these really the worst people out there? Not really. He featured some dumbass jerks, but it was just a catchy title to a news segment. I could very well write something that I call “The Worst Bloggers on the Internet” that would essentially do the same thing. But what if a fan took it to heart? Words are powerful.

For Every Fan…

If you’re an opinionated blogger, you aren’t going to be everyone’s cup of tea. For every fan you have, you might have someone who reads your blog and disagrees with what you say or even grows to dislike you. It doesn’t take another blogging slamming you to find enemies.

And it’s dangerous, even more dangerous than it has been for media personalities or celebrities in the past, because on the Internet, people often forget to act human.

I once saw a conversation about video games turn extremely ugly. Ok, I’ve seen it more than once, but one time in particular, I saw someone ranting about a review score that they didn’t like in a way that really scared me. They called for the blogger to not only be fired, but to, in his words, “burn.” People think they can say these things because it’s just the Internet, there’s this screen of anonymity. We wouldn’t normally say these things to a person’s face, no matter how strongly we disagreed.

And that negativity builds like a virtual snowball. The comments on this review got out of control and, eventually, were shut down.

But what about that blogger? What about the person behind the post, the person who was just speaking his mind? After receiving such hateful comments, I bet he thought twice before using Foursquare to check in anywhere. I would have. Occasionally, comments spill over, cross a line. It goes from being a valid debate to being negativity with no point to being…scary. And you don’t know those commenters. You don’t know what they are capable of doing.

I’m not trying to scare anyone with this post, to say that I think we should not be opinionated, or even to endorse being more careful with posting personal information online. I don’t know that there is any neat wrap-up point to this post. I don’t know that I have any kind of solution, or that a solution even exists. I guess, I just hope that if you are a blogger, you keep what I’ve said here in the back of your mind as you write every post, and continue being brave (and responsible) with every word.

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