The way the system works is by having the doctor, who is a member of their service, give patients as part of their paperwork, a contract giving the doctor all rights to any reviews they write. The doctor then can use copyright to have unwanted reviews removed from the Web.

While the story is actually old, first noticed a month ago and previously covered in the 3 Count, the return of the story is a chance to discuss it in greater detail and ponder the issues it raises.

So is the system legal and could you be signing away your copyright the next time you visit the doctor’s office? The answer is, unfortunately, unclear.

How the System (Theoretically) Works

Doctors, when it comes to online reviews, admittedly have something of an uphill battle. Section 230 of the Communications Decency Act protects sites that host libelous speech posted by users. This prevents doctors, as well as other professionals, from being able to get false statements removed.

However, doctors face an additional challenge is that privacy laws often make it difficult or impossible to respond to negative reviews as they can’t disclose any patient information without permission. This can make it difficult to counter any negative statements.

To get around this, doctors have attempted to find ways to work around the law. Some have tried a series of “gag” orders blocking patients from making reviews and others have said that, by posting reviews online, they sacrifice their right to privacy (thus giving the doctor the write to respond).

The latter approach has been shot down by the Department of Health and Human Services, and the former has, generally, been rejected by review sites.

The copyright angle used by Medical Justice sidesteps those issue and lets doctors use the DMCA to force hosts to remove the now “infringing” reviews or face liability themselves. However, this angle to is fraught with its own perils.

First, it’s very likely that the transfer of copyright would be ruled invalid. While transfers of copyright are common, the standard for doing so is very high and its questionable, at best, whether a court would accept a transfer as part of a packet of new patient documents, especially when a person is in need of medical attention. Even if it does work, as pointed out by the site Doctored Reviews, the doctor can only file takedown notices for reviews they are certain were written by a patient who signed one of those contracts.

If both the transfer and the certainty of review ownership are not in place, the takedown notice itself could open the doctor up to legal repercussions under the DMCA.

All in all, the system is loaded with legal peril and this may be why, according to the Ars Technica article, there is no evidence of it actually being used. Still, the issue is far from theoretical as at least one doctor attempted to get a Yelp review removed using such a gag order.

The question then becomes, what can patients do?

How to Protect Yourself

To be clear, at this time it seems very few doctors use these kinds of gag orders at all. The majority seem to either be ignoring the issue of false reviews online or dealing with it in other ways.

Still, if you are a new patient signing paperwork, it’s probably worth being aware of this problem and reading what you’re signing to see if there is any mention of reviews and restricting your rights to post them.

However, if you do receive such a contract, you’re pretty limited in what you can do. If you need urgent medical attention, not signing the document could delay critical care. But even if it’s a routine visit, you may be limited in your other options depending on where you are located.

At this point, you would have to make a very difficult decision as to whether it was worthwhile to sign the agreement, knowing it to likely be invalid, try to negotiate out of the contract or simply walk away. There’s no easy answer to that situation.

So, while you’re not likely to be faced with such an agreement, if you are, it’s without a doubt a thorny situation.

Bottom Line

In my opinion, doctors that go down this route are missing the point. These contracts restrict their patients ability to post reviews, good and bad, while doing nothing to prohibit non-patients, including competitors and other enemies, from defaming the practice (supposedly the problem). Combine that with a slew of legal headaches and dangers, it’s a situation where the doctor is undertaking a lot of risk for very little reward.

That being said, the doctors are right that they are in a difficult position. However, the alternatives of this position are even worse over all, especially for patients.

While it’s understandable that doctors want to defend themselves against false reviews and defamatory statements, this is an extreme overreaction to the problem. Asking patients to sign over rights, privacy or copyright, to receive medical care is simply too much.

Hopefully, the doctors that are doing this are unaware or simply have not adequately thought through what they are doing. I would hate to believe that any member of the medical community would knowingly put their (relatively trivial) interests ahead of their patients ability to receive care.

However, that is exactly what these contracts do for those who read and object to them.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: No Ads, Domain Seized and No Anonymity For Pirate Site, Judge Rules

First off today, two book publishers, Elsevier and John Wiley & Sons have successfully convinced a Massachusetts to bar two advertising networks, Clicksor and Chitika and a domain privacy service, ENOM, from providing services to a suspected pirate site. The publishers sued the companies, claiming that they provided services to Pharmatext, a site they claimed was making illegal copies of their books available for download. Pharmatext, however, has already been shut down, making this ruling fairly meaningless beyond the potential precedent value, which could be very big as other copyright holders target advertisers and domain registrars.

2: Canadian-Uploaded YouTube Video Doesn’t Infringe in US–Shropshire v. Canning

Elmo Shropshire, co-performer of the Christmas novelty song Grandma Got Run Over By a Reindeer, has lost a legal battle with a YouTube uploader who had put a cover of the song in the background of a video she had posted. Shropshire had posted filed a takedown on the video but the uploader, a Canadian named Aubrey Canning, filed a counter-notice and got the video restored. Shropshire sued Canning but lost on both of his claims. The first claim, regarding the video itself, failed because the creation and upload took place entirely in Canada. The second, which claimed a false counternotice, failed when Shropshire could not point a material misrepresentation in the counternotice and failed to bring in a second plaintiff to avoid risking double or triple damages. Shropshire and Canning have been operating pro se in this case and Shropshire can amend his claims and refile.

3: Corbin Fisher Sues Hotfile, John Does for Copyright Infringement

Finally, the parent company of Corbin Fisher, a gay adult content provider, has filed suit against file hosting service Hotfile, PayPal and some 1000 “Does” claiming infringement for uploading their content to the service. According to Corbin fisher’s filing, the parties have been involved in a “theft scam” and are a “a confederation of intellectual property thieves”, though PayPal isn’t included in the latter. The plaintiffs are seeking reasonable attorneys fees and statutory damages of $150,000 per infringed work, which, considering the 800 works listed in the lawsuit, would make the maximum damages $120 million.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a rel=”nofollow” href=”http://creativecommons.org/licenses/by/3.0/”>Creative Commons Attribution License.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: DDoS Takes Down Aussie Anti-Pirates and 8,000 Other Sites

First off today, the DDoS attacks against anti-piracy organizations by members of the Internet forum 4Chan is continuing, this time targeting the Australian Federation Against Copyright Theft. The group successfully took down the site for several hours but this time there was a great deal of collateral damage as 8,000 other sites hosted at the same location were also shuttered during the attack, including business and government pages. No word yet if another attack is being planned.

2: Adult Video-Sharing List Leaked From Law Firm

Next up today, the law firm ACS:Law is feeling the fall out of its own denial of service attack after a server flaw caused it to publish thousands of otherwise private emails after the attack. The emails included financial information about their letter campaign against file sharers, similar to what the U.S. Copyright Group is doing in the states, and showed the amount of profit that the company made from its campaign as well as several personal emails of staff at the firm. ACS:Law has said that their business is unaffected by the leak.

3: Pirate Bay Appeal Trial Lacks Fanfare

Finally today, in stark contrast to the protests and campaigns for the first trial, the appeal of the four Pirate Bay admins kicked off in Sweden with little fanfare. The four men, who were sentenced to a year in prison and ordered to pay a total of $3.6 million in damages at the lower court are appealing their convictions. However, one of the four, Svartholm Warg, was not there at the beginning of the appeal and none of the other three seem to know his whereabouts.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: No, You Don’t Own It: Court Upholds EULAs, Threatens Digital Resale

First off today, in the case of Vernor v. Autodesk, which saw Autodesk go after a businessman who was reselling licenses of their AutoCAD design software on eBay, the US Court of Appeals for the Ninth Circuit overturned a lower court ruling and found that the license agreement that came with each seat of AutoCAD meant that the works were licensed, not owned, and could not be resold. This has the potential to almost eliminate the right of first sale for digital works. Right of first sale allows the resale of legally-purchased copyrighted works so long as no new copies are made. This could affect virtually all digitally distributed works as even music sold through Amazon and iTunes has similar language in their licensing agreements.

2: How an Anti-Piracy Firm Became Banned In Its Own Country

Next up today, Switzerland-based Logistep has been ordered by the Swiss High Court to stop harvesting IP addresses from suspected file sharers saying that the information is private and should not be collected without user permission. This comes after a very long battle with the Swiss government that first saw the Swiss data protection authority file a recommendation that Logistep stop its collections in 2008, which in turn kicked off the legal battle that reached the High Court and now can not be appealed.

3: Start-Up Rides Copyright Gray Area to Offer Live TV Online

Finally today, the new ivi plans on offering a live streaming service for television and will offer access to 20 different channels including ABC, NBC, CBS, Fox and PBS for about $5 per month. Though copyright questions are legion, the company claims to have found a loophole. By calling itself a cable company, it can provide the streaming service but, as a Web-only company, is outside the jurisdiction of the FCC and thus able to avoid retransmission fees. It is unclear how courts will rule on ivi’s practices but it seems certain that a legal challenge will be forthcoming.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Last Friday I was given the wonderful opportunity to appear on This Week in Law with host Denise Howell and fellow panelists attorney and lead counsel for Twitter (formerly at Google) Alex Macgillivray, and attorney Kevin Thompson. A slew of topics were discussed ranging from copyright issues to privacy and, as the title indicates, a lot of talk about porn.

The podcast lasts about an hour and 15 minutes and you can either listen to it on the TWiL website or view it via the embedded video below:

1: New Zealand “3-Strikes” Passes 1st Reading

First off today, New Zealand’s new revisions to its copyright law survived its first reading in Parliament recently. The new bill, which follows the country’s failed attempt to pass a similar reform in 2008, includes a graduated response system to disconnect file sharers but, unlike the 2008 version, only with a court order. Though critics of the bill are still plenty, the backlash has been much more muted this time, as compared to the campaign that led to the defeat of the 2008 legislation.

2: McCotter’s Plan to Expand DMCA-Style Take-Downs

Next up today, Michigan Representative Thaddeus McCotter has introduced a bill in the U.S. that would expand DMCA-style notice and takedowns to also cover private information. In short, any Web site that hosts personal information of a person would have to remove said information at the request of the person. So, for example, any personal information posted in the comments of a blog could then be removed by request. Some are worried that the system could be abused though it is unclear what punishments a site would face if they failed to comply.

3: High Court: Football Fixtures are Copyrighted

Finally today, Britain’s high court has ruled that football (soccer) schedules are protected copyright. The court found that an adequate amount of work and creativity when into drafting the team schedules to qualify them for copyright protection, possibly creating a problem for sports news outlets and betting companies alike. It is unclear how the various leagues will enforce their copyright, if at all.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

1: Google Books Plan Still in Limbo as Judge Delays Ruling

First off today, the Google Book Search hearing took place as scheduled yesterday with some 21 opposed parties using their allotted five minutes to make their case against the settlement, which would allow google to scan, print and sell copies of in-copyright but out-of-print books. Those opposed outnumbered those in favor 3-to-1. The judge, however, said he would issue a written ruling and that has left the case in continued limbo as we await his decision.

2: Copyright Staff Get More Than They Give to Authors and Artists

Next up today, in Australia, The Copyright Agency Limited, which was formed in 1989 to disperse royalties to authors in artists, spent more money on its own staff than it did on the royalties it was supposed to be passing out. The agency spent an estimated $9.4 million on salaries and gave out an estimated $9.1 million in royalties. Its salaries included some 21 people with salaries higher than $250,000. The organization has drawn a great deal of fire over this and universities are particularly upset as some 80% of the money collected by the group comes from schools.

3: Feds Can Search, Seize P2P Files Without Warrant

Finally today, though this case isn’t a copyright one, the copyright implications are obvious. A court has ruled that law enforcement can look at and download content from a publicly shared folder in P2P software without a warrant. The case involves a man arrested on child pornography charges who claimed he though he had turned off the “share” feature of Limewire and that the government’s search of his shared folder was unlaw. The court, disagreed.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

One of the largest, and least talked about, threats users face on the Web is not malicious users or government intrusion, but the sites they know and trust to host their content and the terms of service they have us agree to.

As the Facebook TOS controversy in February revealed, changes to the TOS can be dangerous to user privacy, security and intellectual property.

However, it is standard practice for many sites to silently change their terms of service as the terms itself allow them to do. Users are often unaware of potentially worrisome changes until after a problem has arisen, when it is often too late to do anything about them.

This is why the Electronic Frontier Foundation (EFF) has created TOSBack, which tracks the terms of service for, currently, 20 different sites including Flickr, Facebook, Google, Twitter and more. Once these sites change their TOS, no matter how small of a change it is, TOSBack reports on it, putting it out over an RSS feed for easy subscription.

Theoretically, this will make it more difficult for these larger companies to change their TOS in the dark of night, making sure that any changes they slip in are brought to the public’s attention.

The Basics

TOSBack is actually a very straightforward service. As the automated system detects a change in one of the tracked terms of service, the system creates a new entry for it. Users can then visit the blog entry page for that change and view the differences side-by-side. TOSBack will highlight the changes between the terms, making it very easy to tell, at a glance, what is different.

The technology is very simple and could not be easier to use. If you subscribe to the RSS feed, you’ll get updates on any TOS changes for the sites it tracks and, if you use that site/service, you’d be wise to take a quick look to make sure you agree with those alterations.

However, there are limitations to TOSBack. First, it only tracks 20 services, Though you probably use at least a few of the services on the list, there’s almost certainly going to be some sites you visit/use daily that are not covered at this time. On that front, it is not a complete solution though they seem to be adding new sites regularly.

The bigger problem is that the matching algorithm has something of a hair trigger. For example, this reported change in the Facebook privacy policy was nothing more than a change of address and this change to the YouTube privacy policy was just a change to the date. Though these might be important changes for attorneys or others actively involved in a dispute with these sites, to average users, they are fairly meaningless.

Also, it is important to note that it does not provide any commentary on the changes themselves and, in cases where there have been massive changes, such as with this change to the Google Blogger TOS, it will not help you parse what’s new. That type of anlaysis requires human evaluation TOSBack appears to be a solely automated service.

Despite these limitations though, TOSBack is still a valuable service that I encourage anyone who values their copyright, their privacy and their security to start following.

Bottom Line

TOSBack is easily one of the most practical and broadly useful tools the EFF has launched in a very long time. Though they are very well known for being both politically and legally active on issues of copyright and privacy, this is a completely neutral and very important tool for tracking the changes to terms of service and empowering users to understand exactly what their rights are when they use their favorite sites.

Though there is room for improvement and expansion, it already is invaluable is something everyone who uses the Web and puts content on it should consider subscribing to.

One of the most common questions I get about filing DMCA notices is “Do I have to give up my address.” With privacy being such a big concern and most spammers/plagiarists not being too pleased about being targets for DMCA notices, people are understandably wary about putting their home address on something that may well be sent out directly to an infringer.

The truth is that the DMCA itself doesn’t provide much guidance on this front. Section 512, the area of the law that spells out the requirements of a DMCA notice, doesn’t go into great deal and simply says the following is required:

“Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.”

This means that, theoretically, all one has to do is provide any information that would let the service provide contact them, including just an email address. This would make Google’s new DMCA form more than compliant with the law.

However, this has not always been the view of other hosts. Some sites, notably eBay, reject notices that do not contain a full address and other contact information. Part of this stems from the requirements for filing a counter-notice, which says that a user must provide:

“The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located…”

This is because the next step after a counter-notice has been filed is for the copyright holder to file a lawsuit and seek an injunction. For that, they need to be able to serve the user with papers for the suit and, to that end, an address is required.

In short, filing a DMCA notice, theoretically, requires nothing more than an email address but a counter-notice requires a full address and phone number. This imbalance has caused many hosts to demand full contact information from those filing DMCA notices. Many of these companies will then forward on the full DMCA notice, contact information intact, to the person being filed against, giving that person the power to harass and annoy.

As such, many are wary of giving out too much personal information when filing a DMCA notice, but there are ways around this issue.

How I Handle It

When developing my DMCA system, I focused on creating one that can be used consistently and without fear of notices being rejected. Since the DMCA is the last resort in most cases and the takedown regime is a fairly standardized system, it was more important to ensure that the notices would be accepted as close to 100% of the time as possible and could be sent out quickly.

Since some hosts demand full contact information and this behavior isn’t even consistent when sending several notices to the same host, I made the decision to include all of my contact information, including address.

Though this meant many my DMCA notices had my mailing address, I recently made the switch to using my attorney’s address. Since it is an address where one can contact me, all that is required, it should be sufficient. Also, one could easily use a P.O. box or any other location they collect mail.

Remember, this is an address where people can contact you, not necessarily where you live.

You can also do something similar with your phone number, forwarding it to an answering service that you check or directing it to your attorney’s office.

The main goal is to give out the information that the host needs to contact you without giving up your personal data. This is something that can be fairly easily done, especially if you plan in advance.

What Hosts Should Do

Ideally, privacy issue should not exist. Though I don’t think it is unreasonable for hosts to ask for additional contact information beyond just an email address, though the law doesn’t require it, that information should not be passed along blindly to the person being filed against.

The reason is that the vast majority of DMCA notices, despite their reputation, are not controversial and only a very small fraction of a percent escalate to a counter-notice or a lawsuit. As such, there isn’t much point in forwarding the full contact information, especially if it belongs to an individual, until the decision is made to dispute the notice.

Ideally, I would like to see hosts forward on the complete DMCA notice with the identifying information removed. They can withhold that information until they receive a counter-notice, this way there is a balance in the information both sides have.

Of course, the law doesn’t require that and, given the expense and effort involved, it is unlikely hosts will actually do this. Still, it seems to be the fairest route.

Bottom Line

If you are worried about your privacy and need to file a DMCA notice, I would encourage you to provide your full information but use an address where you can be contacted but isn’t a place that you live or work at. The same goes for your phone number.

If that can’t be done for whatever reason, then you can attempt to file the notice using only your email address, perhaps even using a special one just for DMCA notices, but don’t be surprised if some hosts reject that notice on the grounds of insufficient contact information.

If that happens, you are definitely in a predicament but most would be better off by just resubmitting the notice with the needed information.

In the end, after hundreds of DMCA notices, I’ve never had an issue with someone coming after me, calling me or otherwise using my personal information against me. I grant that the danger is there and I am just lucky, but I also don’t think the risk is as high as it would seem.

photo credit: akeg

Whenever I am answering questions about copyright or plagiarism issues, it is almost inevitable that someone asks me this question:

“Is it OK for someone to publish an email they get on the Internet?”

This seems to be one of the most common issues people have on the Web. Whether they are someone who has had their email published or are considering publishing someone elses, the legal questions about whether or not it is acceptable to post an email sent to you are constant.

Those questions have only ramped up since the recent hacking of Sarah Palin’s personal email account, resulting in the posting of many of the messages.

Is it legal to publish someone else’s email? It is a tough question. For the sake of time we’re going to assume that the two parties were the sender and recipient of the email respectively, thus avoiding the issues of unauthorized access.

With that in mind, I’m going to provide this in a point/counterpoint fashion to highlight some of the complexities of the laws involved.

Point

Email meets all of the criteria for copyrightability. It is an original work of authorship fixed into a tangible medium of expression. The act of hitting “send” writes the content to a server somewhere, thus qualifying it as being fixed.

The application means that the copying and pasting of it into a Web site, without permission, is most likely a copyright infringement.

Counter-Point

However, when you send out an email, you are likely providing an implied license for many things to happen with it. Automatically, the email is copied multiple times as it makes its journey and there is no case against any of those copies.

Further more, it is a foreseeable consequence the recipient may forward the email to friends and family or even to a large mailing list. That is a form of republication in and of itself and posting a work to the Web is not far beyond that.

Many might argue that, by sending an email to someone, especially someone who is a known reporter or blogger, that there is an implied license to publish it.

Point

The implied license argument is weak at best. Forwarding an email to people you know is different from posting it on the Web the same as forwarding a letter to another office is different from tacking it on the bulletin board.

Implied license issues on the Internet typically deal with works that are already posted on the Web, such as blog posts, and not emails that were intended for one viewer. Despite the ability to forward a message most, when they send an email, only intend the recipient to read it.

An email being republished on a blog is not a foreseeable consequence in the vast majority of cases. That makes an implied license argument very difficult to make.

Counter Point

Even if the implied license argument does not hold, there are still many other exemptions to copyright law that can apply.

First and foremost, facts and information, by themselves, are not copyrightable. Copyright law protects the expression of an idea, not the idea itself. If one does not copy verbatim but only expresses the facts, it is most likely not a copyright infringement.

Second, fair use allows the use of small portions of copyrighted material for the purpose of commentary, criticism, etc. As long as the use is reasonably transformative and does not use more material than is necessary, it is very likely that the use would be deemed “fair”.

Point

The fair use argument is an uphill battle. An email would not be considered a published work, thus, it is much harder to make such a claim. Furthermore, remember that fair use is an affirmative defense and, even if you did win, you would still be sued and likely be dealing with court expenses. Relying on fair use is risky at best.

However, there are still other laws that deal with email republishing such as privacy, defamation and trade secrecy. Copyright is just one possible angle.

Counter Point

In the U.S., there can be no invasion of privacy without there first being a reasonable expectation of privacy. An email, when sent unencrypted, can be easily read by anyone looking at it in transmission, it is essentially a postcard working its way through the mail system, easy to open and read.

Unless additional steps are taken, there is almost no expectation of privacy. Furthermore, if you send the email from work, where you likely sign away much of your privacy rights, you might have even further restrictions.

The other issues don’t directly pertain to republishing email. Defamation and trade secrets are both problems with republishing email, but the fact that the information came from an email doesn’t add any large new legal questions. You always have to be careful what you publish, no matter where you get the content from.

Point

The “reasonable expectation of privacy” limitation only applies to the United States. Other countries, for the most part, seem to treat email with the same privacy reverence as postal mail.

Furthermore, even though you may feel that there is no “reasonable expectation of privacy”, the courts seem to disagree. This is why the government needs a warrant to access your emails.

If the U.S. government needs a warrant to access your emails, it only makes sense that posting such emails on the Web would be a violation of privacy.

Counter Point

The case you mentioned deals only with email stored on an ISPs server and not email in transmission. Furthermore, the ruling was very narrow in nature, leaving room for ISPs to trump your privacy expectations in their license agreement.

Most users still have no reasonable expectation of privacy, even on email stored at their ISP, much less in transmission.

However, all of these issues become moot. If something can be deemed to be newsworthy, the first amendment grants broad protections for people to report on the facts, no matter how they got the information. As with the case of Wikileaks and Palin’s email, the site is not liable due to the freedom of press and the fact they were not responsible for the break in.

There are many ways around the privacy issues, especially in high-profile cases, and most privacy rights as they pertain to email are, at best, untested.

Bottom Line

This is just a brief overview of some of the key issues that arise when dealing with publishing email on the Web. This imaginary debate could likely have gone on for days with no real conclusion.

If you are wanting to use an email in a blog post or other article on the Web, the best thing you can do is either ask for permission or approach the person as a reporter and make it clear that all of their replies are on the record.

If you want to protect your email privacy and prevent publication, the best thing you can do is encrypt it, thus ensuring that only the recipient could receive it and establishing an intent to preserve privacy. Failing that, you can use disclaimers in your email though the legal effectiveness of such disclaims has not been adequately tested.

The absolute best advice is to not put anything in an email that you would not be comfortable with it being posted. Though almost everyone does, with the laws where they are, it is a risky activity.

Conclusions

The purpose of this exercise was not to reach any kind of conclusion about whether or not republishing email is legal and, if so, under what circumstances. With so many laws and issues in play, this is clearly a legal minefield no matter how you approach it.

The best thing you can do right now is be smart about how you use email and what you send through it and to also treat other’s email with respect.

If you do that, you can skirt these issues completely because you can avoid misunderstandings. If you don’t, there’s almost no telling what can happen legally as so much of this is untested.