How to Blog Legally

One of the many wonderful things about blogging is that you don’t need any previous experience or education to do it. You just dive in and go.

Unfortunately, it’s also the cause of a lot of problems. Like the fact many bloggers don’t know how to blog legally.

Remember when I wrote about how I monetized my blog and I said that blogging is more than just telling stories and taking pretty pictures? This is what I was talking about. Understanding the laws that affect your blog (and how to avoid breaking them) is one of the more complicated parts of being a blogger. As soon as you decide to monetize, even if you don’t make enough to file taxes, you are a business. And you have to act like one.

Understanding the laws that affect your blog is one of the more complicated parts of blogging. Click To Tweet

I’ve been in and out of a lot of blogging help groups and the one thing I notice is that many bloggers don’t know to Google things about blogging legally (or don’t know to Google at all). Even if they do, a lot of the information is difficult to find. Did you know that Amazon has a cut-and-paste disclosure statement that they want their affiliates to use? Their Terms of Service mentions it, but it took me a lot of digging to actually figure out what it was. (We’ll get to that.) They aren’t extremely upfront about it, but they have kicked people out of the program for not using it.

Here’s the thing: none of us starts off knowing everything. Even after years of blogging, so much changes that it’s impossible for any one person to know everything. Many companies aren’t afraid to screw over bloggers, so you have to do what you can protect yourself and your brand. Which is why it is incredibly important that we open ourselves up for criticism and that we take the time to educate one another.

Because I see a lot of bloggers doing things that could get them into some legal trouble, let’s talk about how to blog legally.

This post applies to bloggers within the US. If you live elsewhere, your laws and policies will be different.

1. Disclosing Affiliate Links and Sponsored Posts

Ever work with a brand? If you have affiliate links on your site or you’ve reviewed a product, then you have.

Here’s the thing that surprises me about brands–many of their PR staff know very little about the laws that directly affect their company. Do not rely on a brand’s PR to understand how to write a sponsored post legally. That will get you into trouble at some point.

When it comes to government agencies, there are two that you should concern yourself with as a blogger–the FTC and the IRS.

The FTC will mostly affect how you disclose your links/sponsored posts. Here is basically what they say:

• The disclosure must come BEFORE the link, not after (so stop putting the disclosure statement in your footer).
• The disclosure must be easy to see. It cannot be in your sidebar or in a place where readers will have to go looking for it. It has to be within the post itself. It doesn’t matter if you have a Disclosure Statement page.
• You cannot just write, “Disclosure” and then link to another page. Your disclosure must be on the page that contains the links. You are, however, free to disclose and then link to a page containing a longer disclosure statement (this is what I do).
• You CAN just write “affiliate” next to each link if you want. The FTC doesn’t care how you phrase your discloser, as long as you do it and as long as it isn’t deceptive.
• It has to be clear and easy to see. A lot of bloggers create an image that they insert. I recommend AGAINST doing that because sometimes images don’t load properly on certain devices or the link to the image could break and then your disclosure is gone.
• You can phrase your disclosure however you like, as long as it’s not deceptive.
• It doesn’t matter if you were given money, a coupon, or a product. You need to disclose.
• It doesn’t matter how much the product is worth. You need to disclose.
• This applies to social media, as well. (On Twitter and Instagram, the popular thing to do is use #ad. On Facebook, most people just write “affiliate” in parenthesis after the ad. Both are acceptable.)

Note that receiving a free product or a coupon only needs to be disclosed if it was given to you specifically for writing the post. So if you find a coupon in the paper and then decide to review the product of your own volition (or you were given a free sample that the store was handing out to all of their customers and decided to write about it), you do not need to disclose it.

For more information, you can read their FAQs.

Do not rely on a brand's PR to understand how to write a sponsored post legally. Click To Tweet

I’ll say this repeatedly throughout this post: if a brand ever gives you the impression that they don’t care about guidelines or the welfare of your blog, tell them to go screw themselves. As bloggers, we work too hard for some brand to come in and ruin our hard work.

But I thought the FTC Guidelines were JUST guidelines. Why do I have to follow them?

There are a few influential bloggers out there writing about how disclosure guides aren’t actually law, so you don’t have to follow them. I’ve read their posts and here’s what I have:

1. Their arguments are weak. The blog posts I’ve read usually write, “They’re only guidelines” in big letters so you don’t miss it…but once you read their argument for WHY it’s not law, you can see that they really have no argument. It’s all fluff. The last one I read just found multiple ways to say, “FTC guidelines have been around for a while and haven’t changed” over and over again. And that was the basis of her argument. Like I said, weak. At best.
2. The FTC’s .com Disclosures Guide refers to itself as law. Their website calls itself law. The Wikipedia articles about consumer protection that these bloggers are linking to (and clearly not reading) refer to the guidelines as, “a set of laws.” Everything those bloggers are using as sources (besides their own blog) say the exact opposite of what they’re trying to convince us they say.
3. Ignore the guidelines at your own risk. I could be wrong (and I sent an email to the FTC to find out because I prefer to go straight to the source rather than make assumptions. I never heard back). If I am wrong and they are just guidelines, then they are guidelines you ignore at your own risk. They were written to protect the consumer, yes, but following them protects you from being sued for deceptive marketing.

So if you want to treat it as a set of guidelines instead of a law, that’s a risk you can take. I don’t personally recommend it.

2. Free Items ARE Compensation

A few days ago, one of the blogging groups I’m in exploded over another blogger’s disclosure statement. It said, “I was not compensated for this review. I was sent a free [insert product], but all opinions are my own.”

The statement is a little disingenuous, which could be fixed by removing the first sentence.

If a company sends you a free item, it was not out of the goodness of their hearts. They sent it to you with the understanding that you would review it (thereby giving them publicity). It counts as compensation and, depending on how much it’s worth, you do have to claim it on your taxes. And you absolutely need to disclose it as compensation, no matter its worth.

Blogging is more than just telling stories and taking pretty pictures. Click To Tweet

On that note, be sure to ask for review guidelines before agreeing to a review. Many companies will say, “Give your honest review!” thinking that the free product will persuade you to give a GOOD review. Sometimes they send a crappy product, though.

A blogger I know recently gave a free product she received a negative review. The company took the product off their site and demanded she take down her review (which could hurt her SEO, because of broken links) because it wasn’t positive. Fortunately, the company had no right to ask that of her. So she wrote an amendment, stating the company took her review seriously and removed the product from their site. She left the review because she has a responsibility to her readers. Even though the product is gone, it still reflects the quality of that company. Which is exactly what the company doesn’t want, but…they should consider making better products, in that case.

3. No Follow vs Do Follow Links

This isn’t so much an issue with legality, but many PR agents don’t understand no follow and do follow. If a brand asks you to include do follow links, tell them to shove off.

Do follow links are links that Google scans. Do follow links are good for your blog and other bloggers, because Google scans those and says, “Hey, other blogs are linking to this, it must be important” and it gives that site a higher search engine ranking.

However, Google also marks any non-organic links (links that go to an affiliate or product that you have been paid to link to OR links to other sites that you have inserted so you can ride their “search engine juice”). Meaning Google will mark your site AND that brand’s site as spammy. This can kill your search engine ranking. It’s also why I don’t allow links in my comment section without a no-follow tag. Do follow links with brands are generally more sinister than with other bloggers, though. Google calls them link schemes and it directly violates their guidelines.

Many brands don’t understand this (as usual) and will demand (sometimes quite rudely) that you use do follow links. What I do is explain politely how do follow works and that using do follow links will hurt them, too.

If a brand continues to ask for do follow links despite my explanation, I don’t work with them. End of story. I don’t care how well they pay or what awesome products they’re willing to give me. I worked too hard on my SEO to have some brand come in and ruin that.

Because that’s the thing about some bigger brands–some are perfectly wonderful to work with. Others don’t care about your blog, they just want the publicity. Because of that, they often don’t educate themselves on how to get that publicity in a non-shady manner.

As for how the tags work–I won’t bother explaining do follow because links are automatically do follow. To get no follow links, though, you can do one of two things.

Use HTML.

The tag for a no follow link is simple:

<a href=”URL HERE” rel=”nofollow”>LINK TITLE</a>

That’s it! If you’re comfortable with HTML, you can just insert that tag and you’re done.

Use a plugin (for WordPress).

If you have a bunch of links that you want to make no follow, inserting HTML is a pain. So I use Ultimate No Follow, which adds a checkbox to your blog every time you add a link. Check the box and you’re done! FYI, it will look like this once you’ve installed it:

Basically, if you’re not good with HTML or you don’t want to have to mess with it, you need to download that plugin. Otherwise, there is no other way to make your links no follow.

For Blogger users, I have been told that you automatically have a “no follow” checkbox. Since I don’t use Blogger, I have no idea where it is or what it looks like. (If you know, please leave a comment!)

4. Using Images

Don’t pull images directly off of Google. Period.

A lot of people–not just bloggers–violate this rule. Facebook violates it all the time. And most people will say, “Well, it’s on the Internet! That makes it public domain!”

And then they’re shocked and confused when they get sued. Or, best case scenario, they’re angry and embarrassed (and still confused, actually) when a larger entity steps in and tells them they can’t use the images.

A good example of this happened last March to a fashion blogger when a conservative Facebook group swiped a photo she had taken of herself for her blog and turned it into a political meme. Because her face is not public domain, she contacted Facebook and they were forced to remove it. But enough people screen-capped it first that it’s now on the Internet forever and there’s nothing she can do about it.

However, I remember getting involved in trying to get that meme removed from Facebook and receiving responses from a bunch of clueless middle aged men saying, “It’s public domain! She shouldn’t have put it online!” If this is something you really believe, then imagine I came in, took a photo from your Facebook page (since most of you have at least ONE photo visible to the public), slapped something you disagreed with on it, and said, “Well, it’s public domain. You shouldn’t have put it on the internet.” How would you feel about that?

Just because something is available online, that does NOT mean it is free to use. (In fact, Olyvia Media recently wrote a great article called 22+ Websites with Gorgeous Free Photos where she explains this point quite well. You can also pin it for later.) Many bloggers even have copyright notices on their blogs (mine can be found in my footer or on my “Policies” page). Some are strict–you can’t use anything, period. Some bloggers, particularly travel and fashion bloggers, have no intention of letting people use their photos. Some photos come from professional photographers who post their portfolios online. And, yes, they can absolutely sue you if you use them. So read their copyright licenses.

The obvious answer to not getting sued over copyright violation is to just use your own images. But I take 99% of the photos on this blog and I still sometimes need to use stock images. For that, there are free stock image websites. I was going to rattle some off for you, but then I realized Moms and Crafters already wrote a post about 50 Place to Get Free Stock Images (in case you need another source). Check it out, pin it for later, bookmark it, whatever. Just be sure to double-check the copyright licenses on whatever you use. Even though they’re free, some still prohibit their use on commercial websites.

This applies to Pinterest, as well. Just because something is on Pinterest, that does NOT mean you can use it. Also, Pinterest is NOT a source. If you took a photo from Pinterest and credited it TO Pinterest, you need to go through and change that. Most likely, that photo was actually taken by a BLOGGER who is going to be very unhappy if they ever find your site.

5. Pay attention to Terms of Service

Signing up to be affiliated with a company is not like signing up for a Facebook account–you can’t just ignore the Terms of Service (ToS) without consequence.

For instance, many bloggers don’t realize that Amazon has rules against incentives. Anything that could sway someone to buy a product you linked to is considered an incentive. That includes saying, “All proceeds will be donated to charity.” Even telling your readers that their purchases will support your blog and/or your family is a no-no.

Lots of bloggers do that, though, and then get kicked out of the program and don’t know why.

Even after years of blogging, it's impossible for any one person to know everything. Click To Tweet

I mentioned earlier that Amazon has a specific disclosure statement that they want affiliates to use (BTW, they’re also weird about calling yourself an affiliate). This is it:

YOUR NAME is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.

Here’s what makes me mad, though: it’s impossible to find if you don’t know where to look for it. That disclaimer is found here under “10. Identifying Yourself as an Associate.” It took me forever to figure it out, though.

Which supports the point I made at the beginning of this post–a lot of this legal information is difficult to find. Even if you do find it, a lot of it is likely to change (blogging is forever evolving) and it’s probably coming from blogs like this one. Just because a blogger writes about these laws, just because someone else tells you about these laws, that doesn’t mean they know what they’re talking about. So double-check all your sources, including me. Taking other people’s word for it can get you into a lot of trouble.

Did I forget anything? Probably. Let me know in the comments!

Just so we’re clear, I am not a legal professional. Any advice found on this blog is taken at your own risk.