10 Common Legal Traps That Could Destroy Your Blog
Updated May 18, 2018 to include important info on GDPR. See #10 below.
When I started blogging, I was excited to express my creativity and try something new. In all that excitement, it NEVER occurred to me that I might accidentally break the law, piss off the IRS, or flout FCC guidelines. (I didn’t even know what the FCC was back then!)
Luckily, my naiveté didn’t land me in the doghouse, but as my eyes were opened to the myriad legal pitfalls of blogging, I was horrified by stories of bloggers who were sued, fined, and audited simply because they didn’t know the rules of the game.
That’s why I’m writing this post. The rules and regs of blogging really aren’t that complicated or hard to live by, but you have to know what they are if you want to avoid finding yourself on the wrong side of the law.
Here’s lesson #1: Always add a disclaimer if you’re offering readers some kind of medical, financial, or legal advice. Here’s mine: I am NOT a lawyer. Nothing you read here should be construed as legal advice. If you need legal advice, consult a licensed attorney. I’m just sharing stuff I’ve learned along the way and things I’ve done to protect myself from landing in hot water.
Also, please note that I am a U.S. citizen and the laws and guidelines mentioned here may not apply to you at all or you may have additional laws and guidelines you need to follow depending on where you live.
Now then, here are ten of the most common legal traps bloggers fall into and how you can avoid them in the future.
Disclosure: This post contains affiliate links. When you click on an affiliate link and make a purchase, I receive a small commission (at no additional cost to you). Affiliate links are marked with an asterisk (*).
Legal Trap #1: Using Copyrighted Images
Did you know that every image on the web is automatically copyrighted unless the owner designates it “public domain” or “Creative Commons?” It’s true! And the owner of the image can sue you for thousands of dollars if you use it without explicit permission. It’s doesn’t matter if…
You didn’t know the photo was copyrighted.
You provide credit by linking to the owner’s website.
You comply with a DMCA takedown notice.
You have a disclaimer on your site.
You don’t earn any money from your blog.
For years I thought it was perfectly fine to pull images from Google to use in my blog posts. I’m lucky I wasn’t sued out of house and home! When I realized that every single image on my blog was putting me at risk of a lawsuit, I quickly went through my archives and removed or swapped them out.
If you have copyrighted images on your blog, you’re probably freaking out right now. Take a deep breath. It’s okay. Just make sure you delete them all–not just from your blog posts but from your media library too (if you’re on Wordpress). As long as those images are sitting on your server, you’re liable.
You may be wondering, “Where can I find legal images to use on my blog?” and “If this going to cost money?” Luckily, there are plenty of great websites with thousands of high-quality free public domain photos you can use on your blog. My personal favorite is Unsplash, but here are a few more you might find useful.
You can also find Creative Commons photos on Flickr. Photos with a Creative Commons license are free to use but require attribution. Make sure you follow best practices for attribution guidelines and always double check the license of any photo you use. Magdeleine, for example, has a mix of public domain and Creative Commons photos.
This copyright issue also applies to written work such as blog posts and online articles, song lyrics, videos (this does not include embedded YouTube videos), and pretty much anything else created by another human. When in doubt, link to it instead of reposting it on your own blog.
Legal Trap #2: Trademark Violation
I didn’t know how easy it is to infringe on someone else’s trademark until I was preparing to launch this website. Originally, I planned to call it Spark Your Blog. I searched for similarly named websites on Google and nothing stood out. I even searched the USPTO’s trademark database. I couldn’t find any trademark that exactly matched the name I wanted to use, so I thought it was fine.
To be extra safe, I decided to hire an attorney to do a more thorough trademark search. I didn’t want any unpleasant surprises down the road. I’m glad I did because my attorney discovered there was another company with a similar trademark that had a reputation for taking legal action against anyone who encroached on their brand. It’s unlikely they would have sued me, but they could have demanded I change my company’s name at any time. Not only would that have been a huge pain in the butt, it would also have undone all of the hard work I put into building my brand.
I read one story about a blogger who spent fifteen years building her business, only to have it all come crashing down when another company claimed she was infringing on their trademark. It's an extreme example, but it illustrates the fact that trademark infringement is not something to be taken lightly.
How can you avoid accidentally infringing on someone else’s trademark?
When it comes to blogging and business, I run with the DIYers. But navigating the ins and outs of trademark law is one of the few things I don’t recommend doing on your own. If you can afford it, hire an attorney. I recommend Christina Scalera.
If you can’t afford an attorney or are determined to do it yourself, you can find instructions on how to conduct your own trademark search here.
The other alternative is to use your own name as your website and/or business name. That’s what I did after learning it wasn’t safe to use Spark Your Blog. It’s highly unlikely that someone has trademarked your name or that anyone would come after you for using your own name.
Legal Trap #3: Failing to Provide a Physical Address in Your Email Newsletter
If you use an email service provider like MailChimp or ConvertKit, you may be wondering why it automatically displays your mailing address in the footer of your newsletter. This is to comply with the CAN-SPAM Act, which was created to protect consumers from spammy email marketing.
My first few years of blogging, I didn’t realize providing an address was a legal requirement, so I removed my address from my newsletter footer. I didn’t want random people on the Internet to know where I lived!
As it turns out, there was no reason to worry about my privacy. You don’t have to provide your home address. Just rent the cheapest P.O. box you can find and list that address instead. Mine costs about $45 a year. It’s a small price to pay for knowing that my privacy is safe and I’m complying with the law.
Legal Trap #4: Not Having the Proper Legal Disclaimers + Policies
There are four basic legal documents your blog will probably need.
Let’s go over each one of these individually.
A disclosure lets your readers know about your monetary and material relationships. If you belong to an affiliate program, display paid advertisements on your website, publish sponsored posts, or accept free products to review, you need a disclosure. (You also need to disclose monetary and material relationships in individual blog posts where applicable. We’ll cover this below in #5.)
A disclaimer protects you from liability. It lets your readers know that they are responsible for their own decisions and should not rely on you for advice. If you write about legal, medical, or financial topics on your blog, you need a disclaimer, but it doesn’t hurt to have one anyway. Remember, you also need to add a disclaimer to individual blog posts where you offer specialized advice, just like I did at the beginning of this post.
If you don’t know how to write your own legal documents, I recommend using a template. The Contract Shop* is a great place to find legal templates. You can also find free advice on how to write your own online. Just keep in mind the DIY option may not be as airtight.
Legal Trap #5: Improperly Disclosing Affiliate Relationships
Do you disclose your monetary and material relationships at the end of each blog post? In your footer? In your sidebar? On a dedicated disclosure page? If you do, I’ve got bad news. You’re violating the FCC’s guidelines for proper affiliate disclosure.
According to current FCC guidelines, your disclosure:
Should be obvious and unavoidable.
Should not be separated from the “triggering item” (i.e. affiliate link).
“Must be effectively communicated to consumers before they make a purchase or incur a financial obligation.”
What does this look like in practice?
Basically, your disclosure should be at the BEGINNING of your blog post (not the end) and/or right next to the affiliate link itself. For example, you might add “affiliate link” in parentheses right after the affiliate link.
To learn more about the latest FCC guidelines and make sure you’re in compliance, check out this helpful guide by Amy Lynn Andrews.
Legal Trap #6: Running Illegal Lotteries
If you host a giveaway on your blog, you could be running an illegal lottery without even realizing it.
It might surprise you to know that “giveaway” is not a legal term. Your “giveaway” legally falls into one of these three categories: a sweepstake, contest, or lottery. Here’s a quick definition of each.
Sweepstakes: A giveaway where a winner is chosen at random. No purchase or consideration (thing of value) is needed to enter a sweepstakes.
Contest: A giveaway where a winner is chosen on merit. For example, if you ask your readers to submit a photo and choose a winner based on which photo you like best, that would be a contest.
Lottery: A prize drawing where a purchase or thing of value is needed to enter and a winner is chosen at random.
The important distinction between a sweepstake and a lottery is the “thing of value” needed to enter a lottery. This could be money, which is how lottery tickets are traditionally purchased, but it could also be time or some kind of action. For example, asking someone to subscribe to your newsletter in exchange for an entry counts as a thing of value.
Here’s the bottom line: You can’t legally ask for anything in return for entries.
You also need to comply with the laws of all the countries your giveaway is open to. For example, sweepstakes are illegal in Canada, but contests are not. So if you want your giveaway to be open to Canadians, it has to be merit-based. This can get very complicated very fast, which is one reason why so many bloggers limit their giveaways to U.S. entrants.
Legal Trap #7: Not Using Contracts
You’ve just sold your first advertising spot. Or maybe you’re collaborating with a blogger you’ve admired for a long time. Or you’ve just landed a new client. Congratulations! It’s time to make sure this amazing new opportunity doesn’t leave you open for legal trouble!
Partnerships–between two business owners, a service provider and client, or publisher and advertiser–can open up a world of possibilities, but they can also leave both parties vulnerable to disputes and legal action. That’s why it’s important to put all of the terms of your agreement on paper.
As I mentioned before, I’m big on going the DIY route whenever possible, but legal stuff is best left to the professionals. Hiring a lawyer is expensive though, which is why I love The Contract Shop* so much. It offers contract templates for bloggers and creative entrepreneurs written by an attorney (Christina Scalera–the same attorney I hired to do my trademark search) who is also an online entrepreneur herself.
Legal Trap #8: Failing to Report Your Blog Income to the IRS
Sorry to be the bearer of bad news, but if you earn money through your blog, you need to report it as income on your taxes. You have to report ALL your income, even if you’re not issued any 1099 forms.
Here’s the silver lining: You can deduct your blogging-related expenses! I find it helpful to keep a spreadsheet of my blogging income and expenses to make things easier at tax time. You can design your own spreadsheet or buy a template.
Keep in mind that you may be required to pay estimated taxes on a quarterly basis. You can learn more about estimated taxes here.
Legal Trap #9: Assuming You Don’t Need a Local Business License
If you earn income from your blog as a sole proprietor (meaning you haven’t formed an LLC or corporation), you may assume you don’t need a local business license. In fact, many counties require sole proprietors to hold a license and pay any associated fees. Fees vary. I didn’t need to pay a fee and it’s unlikely you’ll have to part with more than $10 to obtain your business license. Check with your county clerk to make sure you’re meeting all the requirements.
Legal Trap #10: Failing to Comply with the GDPR
You may have heard the buzz lately about the GDPR (General Data Protection Regulation), a new EU law that requires more transparency and user control over how personal information is used and stored online.
There's a LOT of panic and misinformation going around about the GDPR, so here are the basics you need to know as a blogger or small online business owner.
You need to start using a cookie banner. A cookie banner (like the one you see when you first visit my site) asks permission before tracking a visitor's cookies. To add a cookie banner in Squarespace go to settings > cookies and visitor data. You can customize your cookie banner using CSS with this tutorial. If you're on Wordpress, you can use a plugin like GDPR Cookie Compliance.
You need to update your terms and conditions. I recommend using a GDPR-compliant template like this one from The Contract Shop.
You need to add consent checkboxes to your email subscription forms. This is going to be extremely difficult to do if you aren't using a good email service provider. I recommend ConvertKit, which makes GDPR compliance a breeze. To enable form checkboxes in ConvertKit, just go to your account settings and select "Show only to subscribers currently in the EU (determined by IP address)" under "Subscriber Consent Options (GDPR compliance)."
No one really knows yet how enforcement of the GDPR is going to play out. It's unlikely you'll be targeted if you're not compliant anytime in the near future but it's always best to be prepared.
If you’re panicking because you’ve fallen into one or more of these legal traps, take a breath and don’t worry. It’s unlikely you’ll be fined or sued. Download my free legal checklist and work your way through it one step at a time. Pretty soon you’ll be virtually lawsuit-proof.
Have any questions, comments, or feedback? Drop a note in the comments below!