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June 17 2011

Publishing News: Blogging and the law

Here are a few publishing highlights from the past week. (Note: Some of these stories were previously published here on Radar.)

Legal ins and outs of blogging

In a recent post for Mashable, CorpNet.com CEO Nellie Akalp noted the blogging industry has grown to include more than 160 million blogs and that there are more than 69,000 blogs created every 24 hours. Along with that growth, the number of lawsuits against bloggers is chugging along at a steady clip.

We recently covered the libel angle of blogging, tweeting, online publishing here on Radar. Akalp's post offers three more general tips to help bloggers stay out of trouble, and she points out why every blogger needs to wrap his or her head around the legal aspects of blogging:

Most bloggers are probably aware that back in December 2009, the FTC revised their guidelines to bring social media and Internet advertisers into the mix. At the heart of this revision was a concern that it was becoming increasingly difficult to recognize an "advertisement" in social media. In 2010 the ruling reverberated throughout the marketing world and the blogosphere. Controversy surrounded Twitter, high profile celebrities, and improperly disclosed sponsor relationships. As a result, every blogger needs to be aware of the guidelines and take some simple steps to minimize their liability.



Magazine publishers don't quite get digital yet


SIscreenshot.jpgMore and more magazines are embracing digital publishing and developing apps for digital editions. But are their efforts thus far succeeding in creating new consumer experiences, or are they simply regurgitating print content onto a screen?

In a recent post for PaidContent, Laura Hazard Owen noted that consumer response to magazine apps has been lukewarm and profitability is questionable:

Publishers continue to take some heat for producing apps that are clunky, not social enough, and overpriced. And at least one magazine entrepreneur/executive argues that his peers are deluding themselves about the likelihood that apps are going to generate profits anytime soon.

Joe Wikert, GM and publisher at O'Reilly Media, recently agreed that magazines aren't properly using digital technology. He implored publishers to think "beyond the quick-and-dirty conversion of print to digital and take advantage of the e-reader capabilities."

Brian Morrissey in a post for Adweek also said that apps are missing the mark. He highlighted design flaws (or perhaps a disconnect between publishers and consumers):

Publishers [are trying] to cram every tech gizmo possible into their apps. Everyone oohed and ahhed at the demo video of the Wired app. Then it arrived in the App Store weighing in at a monstrous 527 megabytes. Want the latest issue? It's hardly an impulse buy when the file is close to the size of full movie download.

This disconnect also is apparent in a chart Owen put together for her post. A close look shows that "popular apps" do not include the magazine apps themselves.

Webcast: Digital Bookmaking Tools Roundup — Pete Meyers looks at the growing number of digital book tools: what's best, what's easiest to use, and what's worth putting in your book-building toolkit.

Join us on Thursday, June 30, 2011, at 10 am PT
Register for this free webcast



Open Road's aggressive marketing techniques


Last month, Jane Friedman landed $8 million in equity financing for her digital publishing company Open Road Integrated Media. In a recent NPR interview, Friedman talked about the company's business model, with 50/50 profit splits for authors and a focus on digitally publishing backlist titles. Friedman noted that "aggressive marketing" is the key to the company's success.

What does aggressive marketing involve? The NPR piece hinted at a few elements:

Open Road backs its titles with aggressive multi-platform marketing campaigns, making creative use of the Web, social media and video. The company produces short documentaries to promote its authors.

For more on what aggressive marketing entails and how the campaigns are handled, I turned to Open Road's chief marketing officer Rachel Chou. Our short email interview follows.

What does "aggressive marketing" mean?

Rachel Chou: Aggressive marketing means marketing throughout the term of contract and not just at the book's launch. It also means balancing real-time marketing vs planned marketing. We build quarterly marketing plans for every author or publishing partner and continue to think of new themes, topics or pitches.

  • This story continues here.



Related:


  • Trapping content on the iPad won't work, even if it's pretty
  • Pride and prejudice and book trailers
  • What ebook designers can learn from Bible-reading software
  • Open Question: Are we at the ebook tipping point?

  • May 02 2011

    Legally speaking, think before you tweet

    The relationship between libel laws and new media has moved into the legal spotlight with a settlement in the Courtney Love Twitter defamation case and a suit against blogger John Huff.

    These examples, and others, put a new focus on libel. Many people are already familiar with libel cases against magazines and newspapers, but what about content published on Twitter or Facebook, or on personal blogs? And since so many of us are publishers now — whether we define ourselves that way or not — what do individuals need to know about libel?

    David Ardia, fellow at the Berkman Center and the director of the Citizen Media Law Project, recently walked me through a couple of examples of how libel laws are slowly adapting to new media platforms. He also offered some common sense best practices for avoiding libel litigation.

    Our interview follows.

    How has libel law been affected by social networking platforms?

    Ardia_Small.jpgDavid Ardia: Libel law, which has been judge-made law for a very long time, has a history of slowly adapting to technological change. I would be reluctant to say that these new social communication technologies have radically changed the law, because they haven't. But I do think we're going to begin to see their influence play out over time.

    One thing that has been very significant is that the means of publishing information, and the ability to reach many people, is now held by millions. As a result, there are many more instances of speech that could support a lawsuit — or threats of lawsuits — happening today than we have seen in the past.

    There's somewhat of a disconnect in what people think they are doing when they update their status or send a tweet with what is actually happening. There's a feeling that we're not speaking to the world, we're only speaking to our friends. Our speech spreads out to the world very quickly, even when we use social networking platforms where we're intending to speak to a small number of very close friends and acquaintances.

    In light of Courtney Love's recent settlement, what are some guidelines people should keep in mind while tweeting or posting on blogs and other social platforms?

    David Ardia: The first thing to realize is that you're not in a personal conversation. Online, people bring sets of conversational norms that you might apply when you're sitting across the table from someone and drinking a beer with them. The Courtney Love Twitter lawsuit gave us a window into that thinking.

    This speech is not ephemeral, it's not constrained — it reaches to all corners of the world, and it is for the most part permanent. So, you should think before you speak. Ask yourself, "if I say what I intend to say, would that bother me if someone were to say that about me?" If the answer to that is "yes," it doesn't mean you don't say it. It means you have to make sure that what you're writing or saying is what you mean to say, and that you have support for what you're saying if it relates to factual information. Those kinds of simple questions often can reveal problems before they occur.



    Do libel laws for bloggers and tweeters differ from those that apply to professional journalists?


    David Ardia: The answer is "yes and no." The same laws apply, but it's how they are applied that can vary. Context really does matter in a defamation lawsuit.

    One of the pre-Internet aspects of how context matters in a defamation suit is that news organizations were typically given more leeway on the editorial page than they were on the news page. On the editorial page, there was the expectation that readers understood what they were reading was opinion — it was not meant to be imparting factual information. The opposite assumption carried over to the news page.

    So, when courts have looked at some of the cases — on blogs, for example — they've noted that the blogging platform is often used for opinion-style writing, so they give the author the benefit of the doubt in concluding that what they're saying are statements of opinion versus statements of fact.

    One of the more interesting cases related to this issue is the "Skanks in NYC" case. A site featured some pictures of a fashion model in New York and called her a "skank" and other offensive terms. The court in that case talked about how many of these terms don't have a clearly defined meaning, but that in the context of this blog, the use of those terms in combination with other reporting on the blog made some of the statements seem like statements of fact. The court refused to dismiss the case outright on that basis. So, context really matters. In that sense, we do see the libel laws being adapted to the unique context for bloggers and tweeters.

    There's also the question of applying these guidelines to professional journalists, because obviously journalists use blogs and Twitter as well. So, one aspect of the question is platform dependent — that's the context question. The other question is what is expected of someone prior to publication with regard to verification and accuracy? In that area, we have a lot less guidance from the courts in the context of new media. Typically, in a libel case, the courts look at what a reasonable journalist would do.

    In a public figure or public official case, the plaintiff has to prove actual malice. That is a very high standard for them to overcome — it basically means the publisher has to have known that what they were publishing was false, or they had serious doubts as to what they were publishing, but they went ahead and did it anyway. Actual malice will apply in public figure cases whether the defendant is a professional journalist or not.

    For private figures, the standard is negligence — or what a reasonable person would do in that context. We don't know how the negligence standard would apply in the context of a non-professional blogger or tweeter — would there be a lower standard? I imagine a reasonable journalist would do more, in terms of fact checking and vetting, than a reasonable person who is just blogging or posting. That's an area where the law has yet to give us clear answers.

    Do you think we'll get to a point where "Internet celebrity" (i.e. you've got 1 million Twitter followers) could serve as a threshold for actual malice?

    David Ardia: Yes — that goes to the public figure test. Public figures are people who voluntarily enter the public eye. Courts really look at whether a plaintiff has voluntarily entered the public eye and how widespread interest is in them. Those folks are expected to show actual malice in order to succeed in a libel case. We have some guidance from the Supreme Court on this, but how that plays out on the Internet we don't know yet.

    One of the reasons why a celebrity or a public figure has to prove actual malice is because they have access to the means of counter-speech that a private figure doesn't. Someone who has a million-plus Twitter followers can correct the record themselves. There's also an expectation when you're voluntarily in the public eye that you take on the risk that people are going to say bad things about you. Courts have basically said that's part of the price you pay for the benefits that come from that kind of position.

    It's a good question whether this maps precisely to the online environment, where you can develop a sort of celebrity that can be a million-miles wide and only a half-inch deep, or a million-miles deep and only a half-inch wide. In those situations, should an individual have to prove actual malice in all instances? We don't really know.

    This interview was edited and condensed.



    Related:


    July 19 2010

    Eine lesenswerte Zusammenfassung des aktuellen Diskussionsstandes zur Freiheit im Netz



    La liberté d’expression dans l’ère numérique (via vasistas.wordpress.com)


    July 19, 2010




    by Marine

    Avec Internet, les frontières et les limites deviennent de moins en moins importantes. En même temps, la bataille pour une information libre et une libre expression d’opinion, online comme offline, se joue de plus en plus sur le Net. Dans l’Union Européenne on peut constater une tendance accentuée d’une régulation et d’un contrôle du Net et avec ceci des limitations des droits fondamentaux.

    On peut penser aux mesures de réponse graduée (three strikes) en France et en Angleterre, qui prévoient une coupure de l’accès à Internet pour punir le téléchargement illégal, aux tentatives pour filtrer le Net aux moyens de mesures extrajudiciaires, au « libel tourism » (tourisme de la diffamation) qui permet aux plaignants de choisir le pays le plus juridiquement avantageux afin de porter plainte contre des contenus médiatiques déplaisants –ce qui fait de la Grande-Bretagne depuis quelque temps un paradis pour les plaignants. On pourrait aussi penser aux diverses tentatives de censure au nom de la protection de l’enfance (par ex. Loppsi ou encore la proposition de directive de Cecilia Malmström pour un filtrage d’Internet à l’échelle européenne) ainsi qu’aux négociations opaques pour ACTA. Et il ne s’agit que de quelques exemples. Dans certains pays africains on utilise même le droit européen afin d’emprisonner des journalistes d’investigation pour « diffamation » ou « incitation à la haine ». Ces sanctions sont souvent justifiées par le fait que ce type de lois existent en Europe continentale et en Grande-Bretagne.

    Cependant il ne faut pas croire qu’il n’y a que des tentatives de contrôle en Europe. Il y a également des premiers signes pour un renforcement de la liberté de l’information et de la presse. Le 16 Juin le Parlement islandais s’est prononcé de façon unanime en faveur de la proposition de l’Initiative islandaise sur les médias modernes (IMMI) pour un nouveau volet de lois de presse qui réunit les aspects les plus progressifs de toutes les lois européennes. L’Islande veut ainsi créer un sanctuaire de l’information et de la liberté d’expression qui accueillera des centres de données, des start-ups, des organismes internationaux de presse et des droits de l’homme. IMMI comprend entre autre le renforcement de la protection des sources, la limitation du devoir de réserve des fonctionnaires et la priorité au principe de la liberté d’expression. En outre, le pays prévoit de décerner un prix pour la liberté d’expression et des sanctions pour les infractions contre cette dernière. Au total, il faudra modifier 13 lois dans quatre ministères afin d’appliquer les éléments de la proposition. Le processus devrait durer au moins un an.

    [...]

    Aujourd’hui, beaucoup de questions se posent quant à l’avenir : Quelle influence auront les lois islandaises sur les journalistes et bloggueurs dans d’autres pays? Comment va-t-on gérer les droits et libertés fondamentaux (et leurs limitations) en Europe ? Quelle direction va prendre la directive européenne lors de sa révision ? Comment vont voter les députés européens concernant le rapport Gallo cet automne ? Y aura-t-il un filtrage du Net à l’échelle européenne ?

    Vois en tout cas la vidéo complète de l’audition du 21 Juin « (Auto-)Censure : Nouveaux challenges de la liberté d’expression en Europe » :


    [ALEV-FULL] Freedom of Expression in Europe
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