When you designed your website, you probably dreamt about how wonderful it would be if one day a popular TV program featured it, and you would become famous overnight, and make lots of $$$.

Well, practice shows that your dream for your website to be featured on national TV can indeed come true, but NOT exactly in the way you imagined!

A couple of questions for you to answer:

• Can your website be used, without your permission, in a broadcast about scams?
  

• Can your personal photo, without you knowing about it, be displayed in a TV program about illegal activities?
  

If you think “No way!”, think again – it already happens!

(Real-life case study can be found at http://www.MediaDefamation.org)

And even more – it may turn out to be absolutely legal!!!

You wouldn’t think about it this way, would you? You probably think that if such a thing happens to you, you can sue the TV program and retire young and rich?

What a misconception!

Now, let me elaborate a little on the subject of defamation and defamation law, how it works offline and online.

The relationship between online and offline Media is very young, and therefore, unregulated. In fact, online publications are legally recognized as a public media on its own. This means, a publication of a defamatory statement on your website, forum or mailing list CAN be prosecuted in the same fashion as a publication in a newspaper.

But now, since Internet is considered a public media, any information that is published on your website may be also considered as being in a *public domain*, which means ANY information that is available online may be used by another media publication in their review of other publications. The use of this information will be legal.

What does it mean for YOU?

It means that a TV program or a newspaper can use a snapshot of your website in their publication or broadcast. They can use images of your website, and they are legally allowed to do it!

A TV program, for example, can show pages of your website when talking about the industry trends or to illustrate a topic of the broadcast.

Now, what if the program is about SCAMS in your industry?

For example, what if a TV program decided to highlight fraud in delivering merchandise or services purchased via Internet?

The TV broadcast could show your website in the beginning of the program, as one of many websites delivering this type of merchandise or services, and then go onto discussing fraud issues and interviews with victims of online scams.

It is apparent that displaying the pages of your website in such a context could hurt your reputation, even if the program did not name your website and only used its web pages as background images.

Legally, a TV program is allowed to use the pages of your website in a broadcast. Are they allowed to use the pages of your website in the context of illegal activities?

This is an uncertain issue.

As we already said, the relationship between online and offline media don’t have specific regulations.

Normally, a media publication is allowed to use any factual content related to a matter of public interest.

Since most illegal activities and their prevention ARE a matter of public interest, the media publication has the privileged defence of *public interest matter*, should you voice your disagreement with the use of your website and decide to sue the program for defamation.

Proving in court that the TV program was defamatory for you will not be easy. You will have to present hard evidence that such a publication could hurt your reputation as the owner of that business, and that there were people who identified you as the owner of the business shown in the program and that the program indeed portrayed you in the way that some people would *shun, avoid or ridicule* you because of the way your business was portrayed. You must also prove that such use of your website was unfair and did not fall under the privilege of *fair comment*, available to Media. You also may be required, depending on the defamation laws in your country or state, to present the evidences of monetary loss due to the broadcast of the alleged defamation.

Defamation cases against large media corporations can cost hundreds of thousands of dollars, because of the tactics that those media corporations use to prevent the plaintiff (the person who believes he was defamed) from getting his case to the stage of court hearing. The plaintiff has to spend a fortune on lawyers (you do not want a low cost lawyer defending your defamation case against a large, experienced in legal battles media corporation), before the case is ready to proceed to the court and all requests of the defendant are satisfied. Then another

Even then, the outcome of your defamation case is unpredictable. It will, firstly, depend on your lawyers. Secondly, it will depend on your witnesses, who, by the time your case goes to the court, which can be a few years down the line, can forget most things related to the defamation issue, and therefore appear unreliable. And then the large media corporation still has the privilege of *fair comment* and *public interest matter*.

At the end of the day, if your defamation case is unsuccessful, you will be required to pay the legal fees of the defendant, which will double your legal bill, and can easily reach payments of $200,000-300,000.

Now, you can see that dealing with a large media corporation in a legal way can be suicidal for a small online business.

So, what can you do to prevent using the contents of your website in a way you disapprove?

A mere copyright notice is not enough in this case.

You need to employ your imagination and make sure you spell in an unambiguous way that any use of your website content can be contemplated only with your explicit written permission. Add this statement to your Terms Of Use Agreement (if you do not have one, write it NOW!). Make sure there is a link to this Agreement on every page of your website.

For example:

* Your use of www.xyz.com website specifies that you agree to comply with this Terms Of Use Agreement. Every time you use www.xyz.com website you void to confirm your agreement with this Terms Of Use Agreement. The content available through www.xyz.com website is the sole property of XYZ, Ltd, and is protected by copyright, trademark and other intellectual property laws. Except as otherwise explicitly agreed in writing, XYZ -owned content received through the XYZ website may be downloaded, displayed, reformatted and printed for your personal, non-commercial use only, through the means of your home computer. You agree not to reproduce, retransmit, distribute, sell, publish, broadcast or circulate, or in any way disclose the information received through the XYZ website to anyone, without XYZ 's prior written consent. All information published on XYZ website should be treated as private and confidential and the publication of such information on XYZ website does not specify that this information is in the public domain. Any reproduction, retransmission, distribution, selling, publishing, broadcasting or circulating of the information received through XYZ website, without explicit written permission of XYZ, will be illegal and prosecuted as such. *

If desired, a note that the information on the site should NOT be considered as being in *public domain* can be added to your Privacy Policy.

It may also help to create a special page named “press” and place there your press release, which you would like Media to use if they want to make a reference to your website. Place the link “Press” on your home page where it cannot be missed. Request them to contact you prior to any use of your website in their publications. Put there all your contact details including phone and fax and the name of the person responsible for press enquires. Include on this page the information that you disapprove using your website contents and images, unless you gave your explicit permission in writing, and that the information on your website is NOT in the public domain.

This of course may not help against unscrupulous reporters, if they REALLY want to use YOUR SITE in a negative context; but in case if the reporters just browsing the Internet for a picture to use, they will rather select a site that does not have this warning.

Even if they use your site despite the warning, you will have a much better case and can complain to a broadcasting authority that the program breached privacy or other regulations specified in the rules for a broadcast in your country.

Media has multiple privileges in defamation cases, and this you cannot change. But as website owners we have our own privileges, too!

We have the privilege of writing our own Terms Of Use. Internet is a much less regulated field than any offline business, where you seldom have a way to make every customer sign your disclaimer and terms of use prior to using your service. On the Internet, by the mere use of your website, visitors may be bound by your Terms Of Use Agreement.

Don’t miss out on writing YOUR own rules of the game!

Copyright 2003 Elena Petrova

Elena Petrova is the founder of the website MediaDefamation.ORG – a website devoted to dealing with defamation issues online. Visit http://www.mediadefamation.org today to learn about defamation law and how it works in regard to online publications.