THREE THINGS YOU WILL GET FROM THIS ARTICLE
1. The best free non-professional advice on defamation you will ever get
2. The one trick about privacy laws you may overlook
3. The truth which busts the most common myths about copyright
Writing a blog, or posting a social media update, often seems like a very personal form of expression that is only addressed to a small group of people. But as far as the law is concerned, it’s not. Read on to find three laws for bloggers that every practice that has a website must know.
There’s a few popular myths about defamation. One is the romantic ‘publish-and-be-damned’ image some people have of always telling the truth, without fear or favour. Another is that truth is a defence. Another is that its something that only applies to big publishers and politicians. All of those myths are dangerous.
Defamation in Australia is any communication between one person and at least one other person that lowers the reputation of an identifiable third party.
If you have a blog or post to a social media account, you are a publisher in the eyes of the law. And despite changes to defamation laws in recent years, the large amount of social media and digital channels you can publish to makes it easier than ever to accidentally defame someone.
Two recent examples:
* The Federal Treasurer Joe Hockey sued a Sydney newspaper for defamation. He said an article about political donations and the link between donations and access to politicians defamed him. The court determined he had been defamed—but not by the report.
He was defamed by a poster promoting the story, and a tweet that showed that poster.
* I wrote an article quoting someone talking about a public ‘party’ for a disgraced local identity. This person said they couldn’t believe other party guests had turned up, given the host’s reputation. My lawyer pointed out that I had defamed everyone else at the party. All they had to do was identify themselves as having been there.
The best advice legal advice I ever heard on defamation was:
1. If you want to avoid a lawsuit, just don’t defame anyone in the first place
2. If you are thinking of a possible defence against a defamation suit, then you are already guilty.
It’s a variation on the old saying; If you don’t have anything nice to say, don’t say anything at all.
Because until it happens to you, it’s hard to understand how hideous it is to be defamed in a public setting. Think of the person you are criticising. You are entitled to your opinion, but you’re not entitled to attack other people. And if you can’t tell the difference between those two positions, it’s best that you don’t write anything.
If you are in any doubt at all that something you are about to publish may or may not be defamatory, don’t call your lawyer—just don’t publish it.
If someone does accuse you of defaming them, know that it’s rare for them to just turn around and slap a lawsuit on you. More often than not, they are going to send you angry emails, letters or phone calls. They may say that they are going to talk to their lawyer. This is a good thing—it means they haven’t talked to their lawyer yet.
So it’s important that you talk to them. That may seem difficult, given that they will want to shout at you. But no matter how uncomfortable that conversation is, it will never be as uncomfortable as a lawsuit.
Secondly, apologise. An apology may well diffuse the situation.
Thirdly, take down the offending material (assuming it’s online). Delete any reference to the person and anything that upsets them before putting it back online.
Finally, talk to them about the best way to make amends. This may involve publishing an apology, or giving them some sort of free advertising, or giving them some space on your site or in your newsletter to put their point of view.
The Australian government’s privacy law is governed by 13 Privacy Principles. If you want to understand where you stand in relation to the law on anything to do with privacy, this is where you start. You can read a fact sheet from the Office of the Australian Information Commissioner here. As a general rule it is a good thing to familiarise yourself with the principles.
It’s a really good idea to keep your email marketing list separate from your other patient information. Part of that is to do with practical issues of keeping the email list up-to-date, which you are required to do under the legislation. But also, you are obliged to keep personal information accurate and secure, and the best way to guarantee that there isn’t even a possibility of an accidental data breach is to keep the lists separate.
Now, do you want the good news? All you really need to send out an email newsletter is someone’s first name and email address. The bad news? Just because you have the email address doesn’t mean you can use it for direct marketing. That’s assuming you’ll find it easy to extract the information from your practice management software in the first place.
The particular principle that would effect your email marketing is APP7—direct marketing. The subclause of that principle basically says that IF you are collecting information from an individual with a plan to send them a newsletter, the person handing over their email address needs to understand that.
So when you ask people for their email address, make it clear exactly what you intend to do with it. It’s also a good idea to make it clear what you don’t intend to do. For example, if you don’t plan to sell that information to anyone else, make that clear. If you want to keep your options open for selling that information, make that clear too.
You also have to give people a clear and obvious way to opt out from receiving your emails. We’re talking about a really big ‘unsubscribe’ button, which may seem counterintuitive at first. But think about it—if a patient doesn’t want to hear from you, you sure as hell don’t want to be spamming them.
Some email software like Mail Chimp, Constant Contact and Campaign Monitor will make the whole process automatic. So if someone unsubscribes, they will make sure you don’t re-add their email address. But you should be able to do it manually too—if someone gets in touch with you and asks you to remove them from your list, you have to be able to do that quickly.
People also have a right to know where their information is being stored. The way email list software works is, you upload your database (or a limited version of it) to a website, and that website ‘manages’ the list. The trick is, if that list is managed in a country other than Australia, you may be in breach of the law.
Always ask if your email provider stores your data in Australia. If they can’t or don’t, make sure that they store it according to Australian law. If they don’t, you have to find a new supplier—because you will be legally responsible for any breaches.
The rules governing copyright and moral rights in Australia are underpinned by similar values to the rules governing privacy. Think of it this way: if it is not your own, unique, original work, you need to seek permission from the owner before using it. And even if you do seek permission, you can’t distort its original meaning. There’s a great list of common myths about copyright at The Copyright Agency’s website.
In short, don’t look for an out clause. Just because there’s no copyright notice doesn’t mean it isn’t covered. Work doesn’t even have to be published to be covered by copyright laws.
There are some special circumstances which allows usage of a small part of a copyrighted work, but they probably don’t apply to your blog. If you read something somewhere and you want to share it with your patients, or use it as inspiration, just do your best to attribute it as well as you can and seek permission from the person who owns the rights.
The other advantage of these laws, or course, is that they force you to produce original content, which Google says will be rewarded in search engine results.
Intellectual property in Australia offers legal protection to things that other people have created. It’s more about inventions, branding and creative expressions, according to the Copyright Agency. You can find out more details about it on IP Australia’s website.
Moral rights are a reasonably newer extension of the copyright laws, having been introduced into law in Australia 15 years ago. Where copyright law protects the economic rights of the copyright holder—making sure other people don’t benefit financially from their work—moral rights are about protecting the integrity of authorship.
Where you might run across this is if you hire a photographer to take some photos of your staff and surgery for the website, then decide to slightly change those same photos and use them in a billboard advertisement.
Doing this would create two problems for you. Many photographers will charge different rates based on how their photos are being used, so they may feel like you’ve tricked them into charging a cheaper rate. But also, in changing the photos, you may make them look inferior in quality or execution to the original, thus affecting the photographer’s reputation.
Moral rights can’t be sold—so you can’t just buy the rights for all uses in perpetuity. You can, however, seek a general consent and try to outline all the ways you may use something.
Anything you write about the law is always going to sound heavy and serious. That’s because it is. It’s no fun being on the wrong side of it.
So it’s also important for you to understand that the guide above is a general one. The law will also acknowledge that different industries have different ways of working, and those ways of working will influence whether or not the rules have been breached.
The important general principle here is to try to be as upfront and honest with the people you’re working with as you possibly can be.
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