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Marketing Through Blogs Presents New Legal Risks

Oct 12, 2007
In recent times blogs have taken on new meaning on the Internet and World Wide Web. Once considered nothing more than rather offbeat diaries, blogs have become major marketing tools at the present point in time. In fact, today millions of consumers from all walks of life and from all over the globe are turning to blogs to get information and advice about different products and services.

As blogs have become more potent marketing and promotional forces, various legal issues have arisen that warrant close consideration. There are two main concerns in this regard when it comes to blogs and blogging.

First, there is a concern about the inadvertent leak of trade secret information through a blog. Second, there is a concern about the potential for false or deceptive advertising claims that might arise from blogs and through blogging.

Never disclose Confidential Information on a blog.
There remains a good deal of debate over the true value of a blog when it comes to marketing and advertising. There is a debate over the return on the investment in blogging.

Nonetheless, many businesses are going so far as to encourage their own employees to blog about the products or services offered by these businesses. In such circumstances, it really becomes of paramount concern that the blogging employee does not disclose too much information about a business and its products or services.

An eager blogger could end up revealing confidential information about a business, including vital trade secrets. When this happens, this proprietary information can end up being used by the competition. For this reason, it is vitally important that a blogging employee understand specifically the limitations as to what can and should be revealed through the blogging process.

When any blog or blogger is supported or encouraged by a particular business enterprise or employer it has the very real potential of being considered advertising. With this noted, however, at the present time it is still not entirely clear when a blor or blogger will be subjected to the more traditional advertising and marketing laws, including laws pertaining to disclosure.

Assuming for the moment that a blog in fact is created or supported by a company and intended for marketing purposes, it can be more safely assumed that at least in theory the more traditional marketing laws will apply. The blog could end up being looked at like any other advertisement and false statements could be deemed as being false advertising and hence illegal. On the other hand, First Amendment free speech issues also enter into the mix because of the underlying nature of blogging.

The reality is that the First Amendment does apply more to individual speech than it does to so-called commercial speech. In other words, an individual citizen has more leeway in expressing his or her opinions that does a paid endorser.

With that noted, the more a blog veers towards becoming the purveyor of a commercial message or communication, the more likely it will be subjected to legal scrutiny and the application of the more traditional laws pertaining to advertisement, marketing and promotional claims.

There are couple of fundamental considerations that come into play when attempting to determine whether or not a blog is commercial in nature. One key issue is whether or not the blogger is compensated by the company or business in question for creating the blog in the first instance. If the blogger in fact is paid, that blogger might be treated in the same was a paid endorser.

The Federal Trade Commission or FTC has guidelines pertaining to what a paid endorser can and cannot, should and should not do. These guidelines can be found online at http://www.ftc.gov/bcp/guides/endorse.htm.

In addition, the Word of Mouth Advertising Association (WOMMA) has a useful ethical guide that can be helpful to a blogger. Finally, a growing number of bloggers are posting disclaimers notifying the viewer that the person is being compensated for creating and maintaining the blog.

Even with disclaimers and even by taking other similar steps, there are gray areas, including whether an employee that creates a blog on his or her own time without receiving additional compensation, or a blogger who receives free product, meets the criteria of receiving compensation. There is now some significant movement in the direction of requiring the blogger to make full disclosure of such a relationship.

Another relevant issues pertains to whether the company has any control over the content of the blog itself. For example, a business that has employees who are encouraged to create blogs could be stuck in a proverbial no-man's land when it comes to laws governing advertisement and their application to that particular blogging situation. If a company does exercise control, it is more likely to be held responsible and liable for acts of copyright infringement, trademark infringement and false advertising committed by the blog operator through the course of the blogging process.

Presently, there are no definitive solutions on how to deal with company bloggers. One course that some businesses are taking is providing their blogging employees with education and training.

In the end, a company likely will want to take care so as not to exercise too much control over a blog By exerting even a minimal amount of control a company may be seen as liable and responsible for the content of any given blog.

Perhaps the most important question for any business is not whether or not to blog but rather how to make blogs work better for a company in the first and in the final analysis. Through this process, legal considerations must be kept well in mind in order to reduce any potential liability that might otherwise befall a business enterprise.
About the Author
Robert Masud, Esq. is the principal of Masud & Company LLC, a law firm for the world of business, finance and the internet.
Find out how our lawyers can help you at http://www.masudco.com.
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