Blogging Phenomenon. and. the Shifting of Current Legal Framework

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1 MSc in EU Business and Law Thesis Master Blogging Phenomenon and the Shifting of Current Legal Framework Department of Law Author: Yange Yang Supervisor: Pernille W. Jessen & René Franz Henschel Århus School of Business, August, 2007

2 Abstract "Blogs" (short for "Web Logs"), as the fast, easy, interactive, and costless online communication tools, have rapidly proliferated and gained the global popularity and influences in recent years, whilst, blogs also present a litany of legal concerns, such as defamation issues, intellectual property right infringements, as well as the potential legal risks brought by employees blogs. The anonymous and internet-based feature of blogs post great challenges to the application and jurisdiction of traditional laws among all nations. This thesis represents and analyzes the grey area and transition of existing legal frameworks based on the laws and courts decisions over blogging related cases by typical countries and international organizations.

3 Table of content Index of figures..Ⅲ Index of tables Ⅳ List of abbreviations..Ⅴ 1. Introduction Introduction to the subject Problem statement Delimitations Structure of the thesis Terminology Literature review Overview of blogging phenomenon Definition of blog History of blog Elements of a typical blog Blog types Blog techniques and software Blogging and defamation issue Blog defamation and related legal issues Parties to a blog defamation lawsuit---the plaintiff Blog defamation and standard for private figure Blogger or public figure? Parties to a blog defamation lawsuit---the defendant The author---defamation and anonymity Pseudonyms and technology companies Two standards adopted by the US courts Chinese law Legal responsibilities of BSPs European Union and United States United Kingdom Germany People s Republic of China.35

4 3.4 Jurisdictions Blogosphere and cyberspace Jurisdictions over blog defamation Blogging and intellectual property rights infringement IPR review and issues related to blogs IPR overview Blogs and related IPR issues Blogs and copyright infringement Blogs, copyright, and jurisdictions Copyright Protection of blogs Are bloggers subject to the copyright protection? Promoting copyright protection Blogging and trademark infringement Blogging and database protection Employee blogs and related legal issues A List of Fired Bloggers Legal Issues Concerning Employee Blogs Defamation Claims, Harassment Claims, and Jurisdiction corporate Reputation and public image derogation confidential information disclosure Blogging Policy Guidelines Blogging policy example of IBM Conclusion 70 Literature 73 Appendix

5 Index of Figures: Figure 1 Booming of blogging since Figure 2: Typical layout of a blog 17

6 Index of Tables Table 1 motion to dismiss and summary judgment.29 Table 2 Creative Common licenses, functions and logo..54

7 1. Introduction 1.1 Introduction to the subject Have you ever heard of blogs, or maybe you haven t. They say there is a book inside everybody, and blogs can easily make it possible that let the book out. 1 With the support of blog techniques and the free blog hosting offers, you don t need either computer specialty or complicated web design software, anyone who can read and write with computer facilities and internet access can easily create a blog and become an online publisher---we also call them bloggers in a very few minutes. Normally, there are three steps to start a blog: Step 1. Create an account Step 2. Name your blog Step 3. Choose a template 2 Most blog vendors offer a variety of templates for you to choose, and you may be able to find out the one you feel like among them, which save the money and energy to design your blogs. Blogs are not limited to the textual content, on which you can also post photographs (photoblog), videos (vblog), or audio (podcasting). With the development of mobile technology, bloggers are not confined in front of the computer screen any more. They can also use their cell phone or portable device such as PDA to blog anywhere at anytime---known as Moblog. 3 Some people say, blogs are websites with a twist. Because blogs are no longer 1 Gerry Mcgovern blogs and blogging:advantages and disadvantages 2 Refer to the blog hosting blogger : https://www2.blogger.com/start 3

8 the one-way content publishing websites, they also provides the platform on which individuals can publish their own opinion, get feedback from others, share experiences and communicate freely as well. blogging becomes a social phenomenon, because to some extent it has redrawn the geographic border between people. The geographic concept in the reality has been weaken, whilst bloggers with the similar interest or common topics form different online communities, such as political blogs, personal blogs, business blogs, travel blogs, health blogs, literary blogs, legal blogs, and educational blogs. 4 None of those blogs are isolated, but connected to each other via links, trackbacks, blogrolls, comments, 5 and their interactivity and data exchange are enhanced by search engines to the utmost as well. Those interconnected blogs are collectively defined as blogosphere. The blogosphere is expanding almost every second. According to the statistics given by discover magazine that "The blogosphere is the most explosive social network you ll never see. Recent studies suggest that nearly 60 million blogs exist online, and about 175,000 more crops up daily (that s about 2 every second). 6 However, for all those new opportunities and convenience brought by blogs, blogging is still very much in its infancy today, and legal issues also need to be taken into consideration. Blog defamations, intellectual property exposure, and blogging at workplace all post great challenges to the existing legal frameworks of both developed countries and developing countries. 1.2 Problem statement Featured as easy, fast, and low-cost, blog is rapidly growing into the new form of online communications and gaining the impressive popularities day by day Holtz,S. and Demopoulos,T.,(2006) Blogging for business :everything you need to know and why you should care, Chicago, IL: Kaplan Pub. 6

9 Compare with bulletin board and chat rooms, blogs provide a better platform for authors to publish their thoughts and share opinions with other bloggers worldwide. By reading, linking, referring and posting each other s posts, blogs have promoted the online interactivity up to a new stage. However, just like newspaper, television and other traditional communication media, the content posted on the blogs may be libelous and harmful to individuals reputation. A series of legal issues arise in this field of defamation. For instance, is a defamed person able to sue in court and recover damages from someone publishing defamatory content in the blog? Can the traditional defamation laws apply to the online defamation in the blog defamation suit? What liabilities should the author, BSPs, and website host assume in the blog defamation cases? Will the shifting legal framework have chilling effect on the privacy and free speech? Which court has the jurisdiction power over the defamation cases and what laws should be chosen in the uncharted international field ---the blogosphere? Besides the defamation issues, the unauthorized use of the third party materials by bloggers may also cause the intellectual property rights concerns. Under what circumstances would the unauthorized use constitute the IPR infringement and how to adjust the existing laws to determine the new issues may call courts for considerations. What if the blogger writers suffer from copyright infringement and would blogger writers cover their damages by law? Legal methods and accessory methods are also introduced to illustrate how the bloggers publishers rights are protected. Employee blogs may bear potential legal risks as well: employees may post entries expressing dissatisfaction and complains about their work environment ;employees may also disclose trade secrets or other confidential information on their personal blogs which may lead to the economic of employers;

10 employee bloggers may post their inappropriate pictures related to the company which would probably destroy the company s public image and reputation; moreover, employees will post defamatory and harassing content towards supervisors or co-workers. Compare to termination of employee bloggers, to create a set of clear blogging policy comes as a more efficient way to avoid blog abuse. The main purpose of the present thesis is to dig into the history and features of blog phenomenon, to discuss the defamation issues, intellectual property rights issues related to blogs as well as potential legal risks of employees blogs. It will focus on analyzing whether the current legal framework can be applied to the blogging cases, and how to balance the privacy and free-speech within the legal scope. 1.3 Delimitations There are many potential legal risks brought by blogs, such as copyright infringement, defamation, invasion of privacy, sexual harassment, trade secret theft, financial disclosures, blog mob attacks, mismanagement of electronic business records and so forth. This thesis will only be based on blog phenomenon and a selection of several related legal issues, namely blog defamation, intellectual property right infringement, and the employee blogging issue. Issues such as blog mob attacks and mismanagement of electronic business records are not considered in this thesis. This thesis gives plenty of examples of applications of rules and cases analysis of the United State in the consideration of its leading position of blogging development.

11 1.4 Structure of the thesis The thesis starts in chapter 2 with a broad overview of blogs to introduce the history, features, and technology of blog phenomenon. Chapter 3 digs into the defamation issues raised by blogging and also the jurisdiction dilemma confronted with courts. In chapter 4 the intellectual property rights infringement caused by blogs is analyzed. Furthermore, the legal and accessory methods for promoting bloggers IPR rights are introduced and discussed. Chapter 5 deals with the employee blogging issues, and provides guidelines and advices for making company blogging policy. Finally, chapter 6 will complete the present thesis with a conclusion. 1.5 Terminology The literature and especially the law include several terms and definitions, which are considered to be important for the present thesis. In order to provide the reader with a better overview, these terms will be specified. Throughout the thesis these two terms ISP and BSP will be treated as the same objectives. The term ISP is the abbreviation for Internet Service Provider, which can be a business or organization that provides to consumers access to the Internet and related services. In the present thesis, BSP refers to the blog service provider. The mainstream blog service providers are always free such as Spaces, and LiveJournal. 1.6 literature review

12 The time when I started the present thesis, a number of papers gave weigh to the description for blogs phenomenon, blogging techniques, and how to use blogs to make money, whilst few of them touched the legal aspects of blogging, which may be due to the fact that blogs is still in the early stage. Therefore the legal research in the following analysis is partly based on the existing legislations which can be obtain from the library or online legislation databases such as and partly referred to the guidance for bloggers such as the legal guide noted by the Electronic Frontier Foundation. During the research on blogs related legal issues, I found there is a common recognition among counties that what is illegal offline remains illegal online. and traditional laws can be applied to the blog cases with some adjustments and redress. Therefore, literatures deal with traditional laws and standards can still be referred to in the present thesis. These books include : Libel Law, Political Criticism, and Defamation of Public Figures, Regulations on online right of communication come into force, Intellectual Property: Patents, Copyright, Trade Marks and Allied rights, Development in the Law The Law of Cyberspace The Domain Name System: A Case Study of the Significance of Norms to Internet Governace,112 Harv,L.Rev.1657, Law, Economics and Cyberspace,and so forth. This present thesis is also supported by plenty of cases and court decisions. Such as SUPERIOR COURT OF NEW JERSEY decision on June 9, 1999 over TAMMY S. BLAKEY v. CONTINENTAL AIRLINES, INC, THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT decision on December 31, 2002 over Revell v. Lidov, 2001 WL (N.D. Tex. 2001), as well as United States Court of Appeals for the Ninth Circuit decided July 7, 2003 over Leslie A. Kelly v. Arriba Soft Corporation. The books and articles used for the literature research in the present thesis were mainly come from the Internet. Electronic books and articles can be found on the

13 Merkur database provided by Aarhus School of Business as well as the search engine Google.

14 2. Overview of Blogging Phenomenon Before digging into the legal issues, it would be very helpful to take an overview of some basics of blogs. 1.1Definition of Blogs The term "Weblog" was first coined by Jorn Barger in December 1997.the shorter form Blog was given by Peter Merholz in the year 1999.in March 2003 the Oxford English Dictionary took the terms Weblog, Weblogging and Weblogger into their dictionary. In summer of 2004 Merriam-Webster s Dictionary included the word Blog into its collection, and gave the explanation as a Web site that contains an online personal journal with reflections, comments and often hyperlinks provided by the writer." Since blog is much closer to the Internet terminology, I would like to define the term according to Matisse Enzer's Glossary of Internet Terms: "Blog -- (web LOG) A blog is basically a journal that is available on the web. The activity of updating a blog is "blogging" and someone who keeps a blog is a "blogger." Blogs are typically updated daily using software that allows people with little or no technical background to update and maintain the blog. Postings on a blog are almost always arranged in chronological order with the most recent additions featured most prominently. " History of Blogs 1.21Blog history in brief timeline form: 7 For more information :http://www.matisse.net/files/glossary.html

15 Although early bloggers did not give a name for what they were doing, mo st people agree that the history of blogging is as long as the history of Wo rld Wide Web. In order to clearly understand the important events happene d in the evolution process of blogs, a brief history in timeline form would b e necessary. June 1993: NCSA started What s New Page : which is considered to be the oldest archived site. January 1994: Justin Hall establishes Justin's Home Page which became Links from the Underground.it is also recognized as the first weblog. April 1997: Dave Winer launches Scripting News His company, Userland, will release Frontier, Manila and Radio Userland, all website and blog content software. December 1997: Jorn Barger first coins the term web log. November 1998: Cameron Barrett publishes the first list of blog sites on Camworld. Early 1999: Peter Merholz coins the term blog after announcing he was going to pronounce web blogs as "wee-blog". This was then shortened to blog. Early 1999: Brigitte Eaton starts the first portal devoted to blogs with about 50 listings. July 1999: Metafilter s earliest archives. July 1999: Pitas launches the first free build your own blog web tool. August 1999: Pyra releases Blogger which becomes the most popular web based blogging tool to date, and popularizes blogging with mainstream internet users. 8 December 2000: Userland launched SuperOpenDirectory. 8 Source from

16 September 2001: since 9.11 attacks, blogs have become the main news source of the event and stepped into the mainstream of public media Main Evolution Stages The evolution of modern blogs can be divided into four main stages: Stage 1 before blogging Before digital age, people kept their personal live in various paper forms and communities which are considered as paper origins of blogs, such as chronicles, commonplaces, diaries, perzines 9, amateur press associations 10 and so forth. When the digital age came, people started to be involved into online communities and publish their ideas in forms of Usenet 11, commercial online services like Bix 12, Genie 13, CompuServe Information Services (CompuServe or CIS) 14, lists 15, and bulletin board systems (BBS) Perzines are a genre of zines,the per meaning personal.although most zines could be considered personal in that they represent the opinionated work of one person,this term describes zines that written about one s own personal experiences,opinions and observations. Taken from wikipedia. 10 An Amateur Press Association or APA is a group of people who produce individual pages or magazines that are sent to a Central Mailer for collation and distribution to all members of the group. Taken from wikipedia. 11 Usenet is a global, distributed Internet discussion system. Users read and post -like messages to a number of distributed newsgroups, categories that resemble bulletin board systems in most respects. Taken from wikipedia. 12 Byte Information exchange(bix) was an online service created around 1985 by Byte magazine. It was a text-only BBS-style site running on the CoSy conferencing software. In 1992 it was acquired by Delphi online service. Taken form wikipedia. 13 Genie was an online service created by a General Electric business-geis.it served a diverse set of large-scale, international, commercial network-based custom application needs. It was one of the pioneering services in the field, though eventually replaced by the Internet and graphics-based services. Taken from wikipedia. 14 CompuServe was the first major commercial online service in the United States.it dorminated the field during the 1980s and remained a major palyer through the mid-1990s, when it was sidelined by the rise of information services such as AOL that charged monthly subscriptions rather than hourly rates. Taken form wikipedia. 15 An electronic mailing list is a type of Internet forum which allows the special usage of for widespread distribution of information to many Internet users. It is similar to a traditional mailing list but typically refers to four things: a list of addresses, the subscribers receiving mail at those addresses, the messages sent to those addresses, and a reflector. Taken form wikipedia. 16 A Bulletin Board System is a computer system running software that allows users to dial into the system

17 In the early 1990s, the internet forum software, such as WebEx 17 created the Thread ---the technique allowed the consecutive messages on specific topics of discussion on the metaphorical corkboard. Stage 2 Early Stage ( ) Just like the start of many things, early bloggers did not give a name for what they were doing. But most people agree that the personal online diary ran by Justin Hall in 1994 while he was a student at Swarthmore College is the earliest blog. In the year 1999, blogs was popularized with the arrival of the first hosted weblog tools Blogger (which was the predecessor of Blogger.com)launched by Evan Williams and Meg Hourihan's company Pyra Labs. Stage 3: Become Influential ( ) Blogs extended to the political spectrum during this period. War blog was one of the most popular blog genres during this stage. After the September 11, 2001 attacks, many blogs supporting the U.S. "War on Terrorism" rapidly became top-rated among readers searching for information related to the event. In 2002, the first blog-driven argument arose focusing on the resign of U.S. Senate Majority Leader Trent Lott, who remarked at a party honoring that U.S. Senator Strom Thurmond s incredible leadership ability would have make him a good president. While Thurmond devoted his early political life to white-supremacists, which means Lott s praise committed to be racial segregation. Although Lott s speech released to the public media, no major media reported over a phone line and, using a terminal program, perform functions such as downloading software and data, uploading data, reading news, and exchanging messages with other users. Taken from wikipedia. 17 WebEx Communications Inc.,a company that provides on-demand collaboration, online meeting, web conferencing and video conferencing application. its products include Meeting Center, Training Center, Event Center, Support Center, Sales Center, MeetMeNow, PCNow, WebEx AIM Pro Business Edition, WebEx WebOffice and others. Taken from wikipedia.

18 his controversial statements until bloggers such as Josh Marshall broke the story by finding evidence and quotes from other previous speeches of Lott's.Finally blogging helped to create a political crisis which forced Lott to resign as Senate Majority Leader. This event showed major media the influential power of blogs that they were not the followers of main public media but can break news to the public and have impact on social and political affairs. By the year 2002, many blogs focused on gathering news of the Iraq war and reflecting attitute and measures taken by both left-wing and right-wing bloggers. It is said that: The second Iraq war was the first "blog war" in another way : bloggers in Baghdad gained popular readership, and one of them---salam Pax also published a book of his blog 18.Blogs were also published by soldiers serving in the Iraq war, which were totally different from official news and brought readers a new perspective on the realities of war. During this period, war blog and war bloggers gained increasing popularity. In 2003 spring, Forbes Magazine covered the phenomenon by using "war blogger" in the larger sense in the "best warblogs." list.by the end of 2003 top-ranking blogs such as Daily Kos and Atrios held more than 75,000 visitors per day. Stage 4: Mainstream (2004-present) Since 2004,both blogs and bloggers have widely and deeply developed the roles into almost every aspect of people s daily life,ranging from political campaign to mass media. Figure 1 shows the booming of blogging since 2003 below: Figure 1 Booming of blogging since In 2003 Atlantic Books, in association with The Guardian, published a book based on Where is Read? under the title The Baghdad Blog.the book comprises blog entries from September 2002 to June 2003 with footnotes.

19

20 Source: State of the Blogosphere, February 2006 Part 1: On Blogosphere Growth, posted on by Dave Sifry on February 6, 2006 In 2004, blogs were taken into use as means for outreach and opinion formation by candidates and news service. Some politicians such as Tom Watson and a UK Labor Party MP who did not play active role in a campaign also took blogs as ways for establishing connections with constituents and creating channels for the distribution of their opinions and comments. Also in this year, Minnesota Public Radio presented a live national program hosted by Christopher Lydon named The Blogging of the President, which covered the impact of blogging on mass media and especially on the presidential campaigns. The Columbia Journalism Review opened serial discussion about blogs and blogging, such as The Man Who Brought Blogging to Iran, Blogs and NBC and the MSM and Mass Murder, Ban the Bomb - Oops, Make that Ban the Blog and so on. In the summer of 2004, mainstream programs like Chris Matthews' Hardball started their own blogs.merriam-webster s Dictionary took the word Blog into its collection. Blogs act not only as the important news source such as Medecins Sans Frontieres during the December 2004 Indian ocean earthquake,but also gave political pressure during the Rather gate scandal, in which CBS was forced to apologize for the forgery documents presented on the show. Blogging can also reveal the customer complaints and vulnerabilities of products. One such example is the bike enthusiast and network security consultant Chris Brennan described how to hack Kryptonite Evolution 2000 U- Lock with a ballpoint pen in the post.

21 Influential bloggers also have appeared on the mass media.for instance, Atrios (pseudonym for Duncan Black) 19,Instapundit (pseudonym for Glenn Reynolds) 20, and Daily Kos (pseudonym for Markos Moulitsas Zúniga) 21 have appeared on the radio programme, while Worldchanging (pseudonym for Alex Steffen) 22 and Wonkette (pseudonym for Ana Marie Cox) 23 showed themselves on television. Bloggers also showed their influential power to the business world.in January 2005, eight bloggers Perter Rojas,Xeni Jardin,Ben Trott,Mena Trott,Jonathan Schwarts,Jason Goldman,Robert Scoble,and Janson Calacanis.were listed by Fortune magazine saying as figures business people could not ignore. Besides all the positive aspects of blogging, related legal issues such as defamation and intellectual property infringement have also brought challenges for the traditional legal framework. In order to reach the goal of self-conduct regulation, in 2007, Tim O Reilly proposed a Blogger's Code of Conduct for bloggers to watch their behavior and moderate their comments Elements of a Typical Blog 19 Duncan Bowen Black is an American liberal blogger, and his weblog Eschanton is one of the most popular political weblogs, receiving an average of over 100,000 visitors each day. 20 Glenn Harlan Reynolds is Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee,and his is widely known for his blog Instapundit which is one of the most famous American political blogs. 21 Markos Moulitsas Zúniga is the founder and main author of Daily Kos focuses on progressive,liberal,and democratic Party politics. 22 Alex Steffen is considered to be one of the world s leading thinkers about environmental sustainability, technological innovation and social reform, and he is famous for his weblog 23 Ana Marie Cox is the founder editor of weblog Wonkettehttp //www.wonkette.com/, which details goings-on of the political establishment in Washington D.C. in the humors way. 24 See article Call for a Blogger s Code of Conduct on Tim O Reilly s blog

22 When we see a blog, we need to realize that there is no common standard for blogs. Some of them may be extremely complex, whilst others may be easily arranged. But all blogs can be divided into three main areas as we can find in figure 2: title banner, posting area, and side bar. Figure 2: Typical layout of a blog

23 Source: Blogging: personal participation in public knowledge building on the web by Mark Brady, Chimera Working Paper Number: 2005, 02 Title bar always includes blog name and description on the top of blogs, which may indicate the nature and topics of blogs. In the Post area, you may find that articles are displayed in reverse chronological format, which means the most recent published is in the first place. These articles may be updated daily or weekly or even monthly, which depends on whether the author is prolific or not. Posts are not only confined to texts, they can also be pictures, videos, and anything else.

24 Side bar usually appears on blogs as narrow space on the left or right side. Some blogs have more than on side bar, which typically contains a lot of related information, such as profile of the author or blog, contact details, a list of old posts, links to the blogrolls, archives, advertisements, categories, and so forth. A Blogroll is a collection or list of other blogs which often represent links to blogs with topics of common interest. Blogrolls act as important tools to promote the interactivity between blogs because once you find a blog you like; you can also easily to get access to other blogs with the same taste and additional information. Archives and Categories are deemed the posts managing tools, since blogs only display ten or more recent posts, older posts are archived by date, weekly or monthly, and links are created in the side bar. Sometime you may find it is inconvenient to search old posts in archives because you can only search by date not by content, however, categories offers a better mechanism in which bloggers can tag their blogs to different categories, and then users can search old posts by the name of tag. A permalink always display under each post as the unchanged links which can also help users and bloggers to search the old posts from the archives when they scroll off the main page. Blogs are the two-way communication channel, in which Comment and Trackbacks are considered to be the most distinguishing features. Normally,

25 readers are permitted to leave their comments on the blogs, and the blogger can answer comments in the new post or in the follow-up comment. Not all blogs allow comments, especially when I comes to the annoying comment spam, which refers to the random comments automatically posted by software robots or unwanted promoting commercial services comments. Anti-blogspam methods are introduced as captcha ---users need to repeat a special code to display their comments, and comment moderation ---only comments approved by bloggers can be shown. 25 If the comment is one mechanism to enable conversations between the blogger and users, trackbacks are another one to complete the feedback loop. Trackbacks act as the acknowledgement for bloggers to keep track of whether their articles have been referred to, linked to, or commented on. Similar to comment spam, trackback spam also exists when Spammers insert the link to the website they want to promote on blogs. Although techniques such as spam filters 26 used on s are also applied to combat the trackback spam problem, many blogs websites decide to stop offering trackbacks due to the trouble. 1.4 Blog types Normally, we will regard blogs as personal diary, online journals, or business blogs, whilst actually according to the content, function, and way of delivery, blogs can be divided into various kinds. 25 Refer to the chapter 1 of Holtz, S. and Demopoulos,T.,(2006) Blogging for business :everything you need to know and why you should care, Chicago, IL: Kaplan Pub. 26

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