COPPA Applies to Blogs: the Xanga Story

More and more, it appears that blogging will gain the respect that it deserves not from appreciation of its content, its growth as a solid, accepted social media outlet, nor its ability to share breaking news, but because bloggers have become parties to litigation in various forms.

Alongside copyright infringement and shield law cases popping up all over the country, consider this:  the Children's Online Privacy Protection Act (COPPA) was passed by Congress to protect kids from online skulduggery.

In sum, COPPA regulates how personal information is gathered and used when it's kids who are inputting the stuff.  It requires things like parental consent for purchasing info, for example.

Last spring, Disney got hit big time with a fine by the Federal Trade Commission to the tune of $3,000,000.00 for collecting info from kids at its Playdom, Inc. site without parents' okay

However, here's the point I'm making.  Bloggers must adhere to the COPPA regulations just like Disney Corporation and other Big Kahunas. 

Xanga.com, for example, is a blogging service that was sued for COPPA violations awhile back.  Xanga offered MySpace-like services to kids and got hit with a $1 million fine (the biggest COPPA fine at that time, according to MSNBC). 

Seems Xanga was allowing kids under 13 years of age set up blogs in its "blogging community" and the Federal Trade Commission found this did not comport with COPPA requirements.

True, Xanga isn't a blog itself -- it's a blogging service.  However, it's still within that blogging realm and its story is a part of the path to blogging's respectability. 


Illinois Shield Law: Chicago Case Rules No Protection for Blogger

Another blog fight over application of state shield law.  Expect this Illinois case of first impression to go up on appeal, after all the losing party has already announced that the fight’s not over.
Nevertheless, a Chicago court has set a precedent on how Illinois will apply its shield law in the case of a blog out of California, TechnoBuffalo, which has been sued by an Illinois printing company, Johns-Byrne Co., in a lawsuit asking the court to force the blogger to reveal its source for an image of a Motorola cellphone (the Droid Bionic)

John-Byrne argued that it needs the name of the blog’s source in order to seek legal remedies against what it believes to be an evildoing employee who violated John-Byrne’s legal rights by sharing the images. 

TechnoBuffalo responded by arguing the state shield law, and claiming that it was acting in the same role as a traditional media source reporting on the cellphone industry. 

What is the big deal?  TechnoBuffalo published the pix on its blog before the cellphone was actually available for sale.

Some would call that a “scoop.”

Nevertheless, the Cook County Circuit Court Judge ruled that the blog is not the same as Main Stream Media and shield laws of Illinois (and presumably California? though how the Chicago judge could rule on Cali law escapes me) and ordered the name of the blog’s confidential source to be released.

Let’s see if the appellate court agrees.


Tips for Regular, Fast Blog Posts – Personalizing the Informational Blog

Blogs are not one size fits all, and while there are blogs that are very personal in nature, there are others (like this one) that are more informative in nature.  Many law blogs wear the informational hat, for example.
Which doesn’t mean that they can’t bring a personal touch to their informational blog, although most of these bloggers don’t want to start writing posts about their football team’s latest victory or where they are taking the kids on vacation this summer. 
Here are some tips on how to infuse an informational blog with some of your individual personality (which readers do like to see):
1.  Books.
Post regularly on books you have read and recommend to others.  Easy to do, the fastest way to do this is just insert the image of the book with a link to Amazon or BN or Powells or whatever and title the post “I Recommend This Book” or “Recommended: [insert title']”. 
2.  Photos.
Post photos regularly, with a short caption beneath them. Choose pix that you have taken, or grab something from the public domain. Images are great for informational blogs, both visually and from an SEO perspective (Google likes this).  Try tying the image to your blog’s theme or to related news. 
A public domain photo of Abe Lincoln on President’s Day, for example.  Another: your photo of the old historic building downtown right before it was torn down.  With that one, your title could simply be:  Acme Building, 1932-2012.  Something like that.
Post quotes that you like on a routine basis.  There are sites that organize quotes, in case you cannot remember the exact wording.  These can be words of wisdom or they be related to your blog’s theme or set of topics.
The text of Martin Luther King’s “I Have a Dream” speech could be placed on your blog for MLK Day, for example. 
How often?
Not more than once a week, I would suggest.  However, having one of these quick posts on a weekly basis brings a two post a week blog to the three post a week blog, and that can be a big difference to readers and to the search engines. 


Recommended Read: “ETrouble” and 4 Things Companies Can Do About It


Great article in Corporate Counsel discussing the risks of social media these days.  Etrouble, they call it. 

I read it via Law.com: “From the Experts: Your Company Tweeting its Way into Trouble? Four Steps to Safely Engage in Social Media,” by Judah Lifschitz and Laura Fraher.

Now, this article is written from the perspective of the corporation and the risks of social media upon the company when Twitter, Facebook, etc. is used by employees, etc.

Worth your time to read, even if you read it as the lawyer for The Man pondering the impact of free speech among the little people. 

Employers do have a right to wonder what their exposure is legally when their employees do things like the Starbucks guy who tweeted about “…shoot[ing] everyone.” 

Good read.


More on Shield Laws: Will Congress Pass the Free Flow of Information Act – And Will This Hurt Bloggers?


More on bloggers and the extent to which legal protections provided to traditional journalists will be extended to them:  right now, there is a bill moving through the House of Representatives that seeks to extend establishing journalistic protections in the law to only those writers who write "for a substantial portion of [their] livelihood or for substantial financial gain."

This might cover some non-traditional journalists.  It’s not going to cover lots of other bloggers who are crusaders or whistleblowers or other bloggers who are collectively being labeled “citizen journalists.”

New Jersey has ruled that its shield law can cover these citizen journalists.  So has California. Will the federal shield law be deemed to be less welcoming to these activist bloggers?

From the bill’s summary description: 

Prohibits a federal entity (an entity or employee of the judicial or executive branch or an administrative agency of the federal government), in any matter arising under federal law, from compelling a covered person to testify or produce any document related to information obtained or created as part of engaging in journalism unless a court makes specified determinations by a preponderance of the evidence, including determinations that: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a noncriminal matter; (3) disclosure of an information source's identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, or certain nonpublic personal information; and (4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information. Allows a court, in making the last of those determinations, to consider the extent of any harm to national security.

Defines "covered person" as a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or substantial financial gain, including a supervisor, employer, parent, subsidiary, or affiliate of such a person. Excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals.

Requires the content of compelled testimony or documents to be limited and narrowly tailored.

Prohibits this Act from being construed as applying to civil defamation, slander, or libel claims or defenses under state law.

Exempts certain criminal or tortious conduct.

Applies this Act to communications service providers with regard to testimony or any record, information, or other communication that relates to a business transaction between such providers and covered persons. Sets forth notice requirements. Permits a court to delay notice to a covered person upon determining that such notice would pose a substantial threat to the integrity of a criminal investigation.

It’s entitled The Free Flow of Information Act of 2011.

You can track it here.


Can Bloggers Be Protected Like Traditional Journalists Via State Shield Laws? Recent Court Rulings Say No.

While we were all enjoying the holiday season from Thanksgiving to the New Year, another opinion came down regarding defamation suits against bloggers that bloggers everywhere may be interested in reading.  It's the third case of which I'm aware where state shield laws are used as a defense by bloggers sued by defamation: Oregon isn't as blogger-friendly as New Jersey or California.

Oregon Shield Law - No to Bloggers

The latest ruling is an opinion that came down from a federal trial judge presiding over a defamation case filed against an blogger up in Oregon, and it’s an opinion issued right before trial began against blogger Crystal Cox.

Read the Oregon federal judge’s ruling here.

In the Oregon case, U.S. District Judge Marco Hernandez heard Cox’s argument that as an “investigative blogger” she was protected by the state’s shield law from revealing her sources to requests for their identity from plaintiff Obsidian Finance Group.  Cox’s claims had a confidential informant as the cornerstone of her claims which she published on her blog.

Judge Hernandez ruled against Cox.  His rationale?  Shield law is limited in its application to “traditional media” and blogging isn’t traditional media. 

Cox, he opined, had no traditional education in journalism.  She had no street creds from a “recognized news entity.” 

Result:  the crusading blogger risks a huge defamation judgment against her to the tune of $ 2.5 million.

New Jersey Shield Law - Maybe to Bloggers

If you’re following this stuff, this opinion may sound familiar.  There was a similar stance taken by the Supreme Court of New Jersey regarding their state’s shield law and online forum posts by another “investigative blogger.” 

Read the New Jersey Supreme Court opinion regarding bloggers and their state shield law here.
In the New Jersey case, Washington State resident Shellee Hale argued that she investigates and reports on corruption in the online adult entertainment industry, although admittedly she is not a traditional journalist (no journalism degree, no connection to a “recognized news entity”). 

Hale was sued by Too Much Media, LLC, a company that makes “adult entertainment” related software, for defamation and false light for comments about the company that she posted online in a forum.  Hale argued she was protected by the New Jersey Shield Law and lost - although the opinion was a victory for bloggers, overall.  (To read her posts as well as the lengthy opinion giving four bases for its decision, go to the opinion itself.)

The New Jersey Supreme Court’s rationale?  From the opinion:
New Jersey's Shield Law provides broad protection to the news media and is not limited to traditional news outlets like newspapers and magazines. But to ensure that the privilege does not apply to every self-appointed newsperson, the Legislature requires that other means of disseminating news be "similar" to traditional news sources to qualify for the law's coverage. We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.
California Shield Law - Maybe to Bloggers

Meanwhile, the California courts have also ruled on the application of shield laws to the publications of bloggers.  In O'Grady v. Superior Court, a California appellate court ruled several years ago that its state shield law could encompass the work of non-traditional journalists, or citizen bloggers.

From O'Grady: 
We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

Here’s something to think about:  if Cox had been interviewed on television, or by a “traditional journalist” for a  printed publication with an online presence that is a “recognized news entity” and told her tale – would her confidential source be protected by the shield law?  I think so.


Recommended Read for Bloggers: Blogger Behave by Laura Booz

I don’t recommend a lot of books about blogging – nor do I buy them for myself – because lots of them are all about so pushy with promises about how to make millions from blogging (usually in only minutes a day, wow!)

However, here’s one of those exceptions to the rule: a new book offered both in print and ebook by Laura Booz entitled Blogger Behave: Make your blog benefit your life so you can love both! 

You can read a short excerpt on Amazon if you’d like to investigate it. 

Suffice to say, it’s for bloggers everywhere (not just lawyers) and it is a friendly book that helps to spread one of my big messages:  blogging for hard sales shouldn’t be done by most of us, leave that to Ford Motor Company (and even they have a nice guy name Scott Monty to personalize their social media). 

Blogging should be fun for you and the reader.  Informative.  Worthwhile.  Worth your time and theirs.

If it’s not, then you need to not blog.


Sources of Info for Your Blog Posts: Site Organizing News by State

Here’s a site that I recommend to my clients for their blogging and which I’ve used myself for several years now:  US News by State.
It not only provides news stories that are breaking in the various states, it also lists the larger cities or metropolitan areas within those states.  That’s great but it gets better than that: within these lists, the various news stories (hyperlinked to their sources) are provided outlet by outlet. 
For example, within the Dallas-Fort Worth metroplex, the top news stories are listed (with time and date) for:
  • Dallas Business Journal
  • Dallas KTVT
  • Dallas KXAS
  • Dallas WFAA
  • Fort Worth Star Telegram (three versions)
There’s also a search feature.
Of course, not all media sources are included here.  The Dallas Morning News is absent from the above list, and it’s a major player in that market.  If I were writing about something dealing with Dallas or Fort Worth or the surrounding area, you betcha that I would also go and check out the latest at the Dallas Morning News site.
What Do You Do With the News Stories?
Once you’ve got a list of news stories, then you’ve got a springboard for your next post.  It’s great because it’s local and local coverage is excellent for most blogs. Especially law blogs.
However, for any blogger, news stories can be something that you can hyperlink within your post as you discuss something relevant to that post.
For instance, I coauthor a blog with Terry Lenamon that deals exclusively with the death penalty.  In the Fort Worth Star Telegram today there is a story by Anna Tinsley entitled “Texas still top state for the death penalty.” 
I will read this story for a possible link within a post on Terry Lenamon on the Death Penalty.  Terry’s not in Texas, so it would serve only as a secondary link – Texas lead in the death penalty stats is a bigger story in Fort Worth than in it is Miami.  This story may be helpful to fuel the fires for how Florida ranks in the death penalty, what Florida’s Powers that Be are doing in 2012 about the death penalty, etc.
You get the idea. 


Could Evernote Help You As You Write Your Blog Posts? I Think So.

A software guru that I respect recommended Evernote to me last month as a time-saving bit of software and I’ve been working with it for around a month now. 
I like it, maybe you will too.  You’ve got to like the price:  the basic version is free.   
So What is Evernote?
Evernote is software that you download onto your hard drive and it pops up in your internet search engine:  IE, Firefox, Chrome, whatever.  There’s also a little icon on your desktop; all this coordinates to provide you a platform for organizing stuff you find on the web.  You can save different things: the url for the webpage; an excerpt or article on that page; or you can store the complete page from its banner ads to its boilerplate footers.
Of course, it also works on your phone and your other stuff too.  Sync smart.
For the description the Evernote folk provide, go here.
What Have I Found?  It’s Easy and Fast, and There’s a Size Limit for the Free Version
I’m still trying out all its bells and whistles but I know Evernote is a keeper, and for those who write blog posts regularly, I think it’s a good tool to have in your toolbox, too. 
I’m not using the notes feature, but I have been routinely clicking on the green elephant to save stuff that I find on the web that I want to use in future blog posts for myself as well as forwarding to clients for their consideration in their posting. 
For example, I don’t have a lot of interest in blogging about the latest developments in the legal battles involving Florida’s disgraced attorney, David J. Stern and his foreclosure-focused law firm, but I have a client that is very interested in this stuff.  When I read an interesting article about the latest acts that the Florida AG was undertaking, I thought this might good for my client and quickly hit the elephant button.  Saved the url. 
Zip zip. 
No bookmarking.  Hate to clutter my bookmarks with this stuff.
No notes either on paper or on my PC’s sticky notes or on my iGoogle page.
I was back surfing almost immediately.
Bottom line, I am finding Evernote fast and easy to use for saving web stuff that I might want to use later.  The little button is the big help.
For more on Evernote, check out their descriptions of its various functions as well as watch their cool videos on things like Evernote Clearly, Evernote Food, Evernote Hello, Evernote Peek, and other freebies they offer.  
For what other users think as well as techie experts, check out the reviews of Evernote on CNET and AppBrain.
Oh, and Evernote was one of the top apps recommended by the New York Times last year – if you want to read old news.