Legal Guide for Bloggers in Australia

Last updated: 31 August 2021

Legal Guide for Bloggers in Australia – Blogging on the Internet has grown rapidly in importance in the last 10 years. Blogging ranges from maintaining a simple, personal online diary, all the way to running a sophisticated, online media publishing business. And blogging now covers as many topics as you can imagine – food, fashion, politics, sport, travel, cars, business, mums-in-business, stay-at-home dads, tech, cryptocurrencies, etc. etc. etc.

In this guide we try to answer all the legal questions you might have about blogging, setting up a blog and running a blogging business, from an Australian perspective.

Legal issues covered in this guide

Click on any of the questions below to jump to that section of this legal guide.

If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.

Various legal issues may arise from your blog, with some issues applying to only particular types of blog (e.g. financial or legal advice). Some typical issues relate to:

  • Affiliate relationship disclosure
  • People relying on your content
  • Copyright infringement
  • Trade secret breaches
  • Privacy breaches
  • Blog comments
  • Defamation, etc.

Most of these issues are covered in some detail below.

Are there any topics I should not blog about?

image of legal guide for bloggers in Australia

Source: HubSpot (2017)

The Australian Constitution does not explicitly protect Freedom of Speech. However, the High Court of Australia has determined that Australians enjoy an ‘implied’ Freedom of Speech. This is a somewhat nuanced topic, but for the purposes of your blog you can consider that you do have a right to Free Speech in Australia.

That said, you should still think carefully about the topics that you cover in your blog. Free Speech does not necessarily mean that you will not face consequences. For example, if you use your blog to:

  • Badmouth your employer or a coworker, then you risk losing your job
  • Spread false rumours about another person, then you may be liable for defamation
  • Violate Copyright or intellectual property rights, then you may be sued
  • Publish deceptive information to induce members of the public to purchase goods or services, then you may face legal consequences
  • Publish sensitive government information, then you could face serious criminal penalties (or find yourself locked in the Ecuadorian Embassy like Julian Assange!)

There are many other potential blog topics that could cause problems for you, so use your common sense.

Should I avoid blogging about my job, employer or workplace?

If you want to blog about your employer you should speak to your employer before publishing anything. You may be prevented in your employment contract from making any comments on social media about your work place. Your employer may also want to review each post before it is published.

If you are not comfortable doing this (for example, because you plan to blog about topics that your employer will not approve of) then this is a good indication that you should avoid that topic.

In the vast majority of cases, if you blog about topics that cause harm to your employer by damaging their reputation, your employer will have the legal right (and the motivation) to fire you.

In some cases, employers use blogging to support their own marketing campaigns. They may be happy for you to blog about topics that are related to your job and that are likely to bring in more business. For example, if you are an interior designer, your employer may be happy for you to blog about interior design trends. However, you should still seek your employer’s approval before doing this, particularly if people are going to be able to identify your employer through your blog.

It may be safer to avoid using company trademarks and logos in your blog posts.

Trademarks are protected from being copied or reproduced under the Trade Marks Act 1995 (Commonwealth). However, trademarks can be used to compare different products or services – as long as the description of characteristics is done in ‘good faith’ and you are not trying to mislead or deceive. For example, you are not pretending to be a representative of that company.

Can I be sued for defamation for my blog posts?

Yes. You can be sued for defamation if you publish false information about a person, you name that person and your information would cause “an average person to think less of that person”. You can even be sued for defamation if the false information was first communicated to you by somebody else, and you just repeated it.

Am I liable for any advice I give on my blog?

You could be. If somebody thinks you are providing advice (even if you are not) or relies on advice provided on your blog and suffers loss as a result of it, then that person could sue you and seek compensation for their losses.

For example, you might have a blog on which you review various financial products. If somebody makes an investment based on your recommendations and loses money, then they could potentially sue you for their losses.

To protect against this, you need to post Terms & Conditions and a Disclaimer on your blog. These would state that the information on your blog is for information purposes only, is not financial or personal advice and that readers of the blog rely on that information at their own risk.

It is also important that the Terms and Disclaimer are easy to find on your blog and easy to understand. You might also consider forcing visitors to your blog to accept your Terms and Disclaimer before reading on.

Disclosure Best Practice

Do I have to use my own name or can I blog anonymously?

Pseudonyms or pen names have been used for years by authors seeking anonymity, but should you use one for your blog?

This is up to you. In some circumstances, it can make sense to use a different name for your blog.

For example, you might have a professional reputation in accounting, but want to start blogging about relationships. You might decide that you do not want your professional colleagues knowing the finer details of your personal relationships.

Alternatively, you might be blogging about a sensitive topic such as abortion, and you do not want to have to deal with the prospect of harassment, abuse or threatening behaviour from members of the public.

You might simply decide that your real name does not sound very marketable and you want to use a different name that people might be more likely to remember.

However, if you are planning to blog under a different name there are some legal points to keep in mind.

Copyright in Australia is automatic – you do not need to apply for Copyright protection and it even applies if you use a different name. If you use your real name the Copyright protection lasts for 70 years after your death. But if you use a pseudonym the Copyright protection only lasts for 70 years after the date of publication.

In addition, if you use a name that is well known – for example, the name of a famous person or a movie character – you have to consider whether use of that name is restricted by a trademark, etc. Your blog content might affect the reputation of that famous person and if it does then they may seek compensation from you. The same caution applies if you just use a famous person’s name in a blog post.

Do I have to disclose my affiliate relationships?

Yes. Australian Consumer Law states that if you receive an affiliate commission for referring customers you must disclose this. If you are transparent about this with your blog readers it will also build trust with them.

Do I have to disclose my paid endorsements?

Yes. Again, Australian Consumer Law states that if you receive a “benefit” you must disclose this. In addition, the Australian Association of National Advertisers (AANA) Code of Ethics encourages “Advertising or Marketing Communication shall be clearly distinguishable as such to the relevant audience”.

Can I use testimonials and endorsements on my blog?

Yes. But be aware that testimonials and endorsements are also covered by Australian Consumer Law. You cannot fake testimonials and you cannot remove or edit negative testimonials or reviews. You also must disclose if friends or family are providing reviews or testimonials.

Can I use images from the Internet to illustrate my blog posts?

No, not necessarily. If an image is protected by Copyright then you cannot use it without the permission of the Copyright owner. You can either:

  • Purchase licensing rights from a “stock image library” such as Shutterstock
  • Use images from “royalty-free libraries” such as Unsplash, or
  • Use photos you’ve taken yourself

What do I do if I receive a DMCA notice?

The Digital Millennium Copyright Act (DMCA) is Copyright legislation from the USA. If you receive a DMCA notice it means somebody is alleging that you are in violation of US Copyright law.

If you agree that you are in breach of Copyright – for example, you know you used somebody else’s Copyrighted material – then you should take down the material immediately.

If you are unsure whether you are in breach of Copyright – for example, you think somebody gave you permission to use the content – then it is good practice to take the material down anyway, while you try to resolve the matter.

If you believe that you actually have a right to use the Copyrighted material then you should contact the Copyright owner. Their details should be in the DMCA notice.

If you cannot resolve the matter amicably with the owner of the material then you may issue a Counter Notice.

What should I do if someone steals my content?

If you discover that somebody is using your content on their website you should send a Copyright Infringement Notice to the owner of that website. In this Notice you will need to identify the Copyrighted material and will demand that the person stops using your content by a certain date. If the person does not comply with your request then you may take further action.

User Generated Content

Should I allow guest posts on my blog?

This is up to you. Guest posts can be a great way to bring new readers to your blog.

However, you should ensure that you have an appropriate Disclaimer to cover liability for any information in that guest post. Plus it’s a good idea to get a Warranty from the guest blogger to certify that the information is true and correct and indemnify you for any losses that you or your readers incur as a result of the guest blog post.

If you have regular guest bloggers or other contributors to your website, then these terms should be incorporated into your blog Terms & Conditions.

Should I allow readers to comment on my blog posts?

You are responsible for everything on your website, including blog comments – even though you did not post them yourself.

If you allow blog comments then you need to include appropriate rights and protections in your Terms. For example:

  • You are not responsible for the contents of reader comments
  • You have the right to delete comments
  • You have the right to terminate a user’s account
  • No harassment, bullying, racist comments, etc.

Do my blog commenters have the right to say what they like on my blog?

No. You have the right to choose who can participate in discussions on your blog and specify how commenters should behave. However, this should be explained in your Terms & Conditions.

What should I do if someone is defamatory, rude or bullies in my comments?

Firstly, when setting up your blog you should ensure that your Terms clarify that readers of your blog are not allowed to behave in this manner. Furthermore, you should state that you have the right to delete comments or terminate a user’s account if necessary.

Then, if this behaviour occurs, you may delete the comments. You may also contact the commenter, advising them to stop this behaviour or their account will be terminated. If they do not comply then go ahead and terminate their account and maybe block their access to your blog.

Can I be liable for comments posted on my blog by other people?

Yes. You may be liable for comments posted on your blog by other people if you do not have the appropriate Disclaimers and Terms & Conditions in place.

However, once you have those Disclaimers and Terms in place you are protected against this liability. The level of protection depends on how well your Disclaimers and Terms are drafted and how well they address your particular blog.

Can my commenters sue me for editing or deleting their comments?

Your Terms & Conditions should clearly set out your rights in relation to users of your blog. The Terms should state rules for how commenters should behave and what kinds of comments will not be accepted. The Terms should also reserve your rights to edit or delete comments that do not meet these standards.

If your Terms do not do this, or if you do not have Terms at all, then you may run the risk that commenters sue you for editing or deleting their comments. For example, they might assert that they have intellectual property rights in their comments and that you have infringed on their rights by editing or deleting their comments. This may be a messy, time consuming and expensive argument to get into.

Who owns the comments and user generated content on my blog?

If you have a good set of Terms & Conditions, displayed in the right places on your blog, then these will set out who owns content on your blog.

In most cases, you will want to take ownership of any comments or user-contributed content. It is relatively straightforward to create Terms & Conditions which allow this. However, every website is different and some bloggers do not want to take ownership of these items.

My Blog Content

How can I avoid getting sued for my blog content?

Every blog is different and there are many unique legal issues that can arise. But keep these things in mind:

  • Get all of your legals (Terms & Conditions, Privacy Policy and Disclaimer) organised before you publish
  • Make sure your legals are tailored to suit your blog, particularly if you are blogging on a high risk topic (e.g. child health)
  • If you content could be considered professional advice, make sure your Disclaimers cover you
  • Make sure your legals are displayed prominently on your blog
  • Use your common sense in relation to the topics that you blog about
  • Do not spread rumours about people, organisations or companies
  • Do not copy other peoples’ work without their permission

And if you’re not sure, contact us for legal advice.

What should I do if I get sued for my blog content?

Get legal advice straight away! The quicker you address the issue, the higher the chances that you will obtain a cost effective resolution.

What should I do if I get a cease and desist letter?

Don’t panic. A cease and desist letter looks scary, and while you should take it seriously, you do not need to be intimidated.

If you accept the allegations in the cease and desist letter (for example, you acknowledge that you did actually copy somebody else’s work) then you should remove that work from your blog as soon as possible. If you disagree with the allegations (for example, you think you actually have the legal rights to copy a work) then it is possible to formulate a response to the letter or, in some cases, simply ignore it. Although this is not recommended.

However, you should not take either of these steps without speaking to a lawyer. A cease and desist letter can be the first step towards legal proceedings. If you are incorrect about your legal rights, or if you are not careful with your response, then you could open yourself up to a costly legal dispute.

In the event I am sued, how can I limit my liability?

Again, by seeking legal advice straight away, you greatly improve your chances of resolving the matter in a cost effective manner. If there is some way that you can limit the damage that is caused to the person that is suing you (for example, by taking down defamatory blog content) then this may also help.

Website Legals

Should I have a Disclaimer on my blog?

Yes. As the name suggests, a Disclaimer “disclaims” liability – which means it provides you with valuable legal protection. It is especially valuable in the event that somebody follows a suggestion that you make in your blog and then suffers loss as a result.

For example, perhaps you blog about the share market. If somebody makes an investment based on something they read on your blog and ends up losing money on that investment, then there is a real risk that they could sue you for their losses. A robust Disclaimer will protect you from this liability, by clarifying that the blog is not financial advice and that the reader reads it at their own risk.

Should I have a Privacy Policy on my blog?

Australian Privacy Legislation recommends websites to post a Privacy Policy statement if they collect ANY customer or website visitor information. This includes:

  • Email addresses
  • Postal addresses
  • Telephone numbers
  • Credit card numbers, etc.

So even if you have a basic Contact Form on your website you SHOULD have a Privacy Policy statement.

What other legal notices should I post on my blog?

In addition to the Privacy Policy, you should have a set of Terms & Conditions and a Disclaimer. If you use affiliate links or accept paid endorsements, then you should also post notices to cover these too.

This depends on the nature of your blog. For example:

  • If you are paying contributors to provide content for your blog, then you need a Contractor Agreement between you and the contributors
  • If you are paying for endorsements, then you may need a Contract between you and the party providing the endorsement
  • If you are selling any consulting services through your blog, then you may need contracts that cover these services

If you are unsure about the agreements required for your particular situation, then get in touch with us.

Structuring Your Blogging Business

This is up to you. A Trademark can be an extremely valuable feature of your business. It enables you to protect your brand and to prevent anybody else from imitating it in Australia.

Some startup blogs that are operating on a tight budget (and that do not have much of a brand reputation to start with anyway) may choose not to Trademark in the beginning. However, as the business grows they usually reach a point that they decide it is necessary to register a Trademark.

We have another feature article all about ‘How to Trademark Your Business Name and Logo’. Plus we also offer a Trademark Registration Service.

What business structure should I use for my blogging business?

The cheapest and simplest structure to use is a Sole Trader – and this is what many small bloggers use. However, it does not offer any liability protection in the event that somebody sues you.

If you are blogging with other people, then you may consider a Partnership. But, like a Sole Trader structure, this still does not provide any liability protection.

A Company structure does provide liability protection, in the event that somebody sues you in connection with your blog. But there are modest costs of setting up this structure and maintaining it. For example, you will need to file separate tax returns and report your Company details to ASIC (Australian Securities and Investments Commission). The corporate tax rate is less than the highest individual tax rate and companies can claim some tax deductions that cannot be claimed by individuals (for example, education, advertising and training).

Again, we have written another feature article all about ‘How to Choose the Right Business Structure in Australia’.

Should I register my blogging business for GST?

If you expect that your blogging business is going to generate more than $75,000 per year in revenue, then you will need to register for GST.

Do bloggers need website or business insurance?

Whether you need insurance or not really depends on the nature of your blog.

If your blog is just a hobby, where you add a few photographs of the new house that you are building, then insurance is an unnecessary expense. However, if your blog is more sophisticated, then you will face many more risks that may create a need for insurance.

For example, you could become liable in the following ways:

  • You might be sued for defamation
  • You might be sued for third party liability – in the event that somebody suffers a loss after following suggestions on your blog
  • You might be sued for infringement of Copyright or other intellectual property rights
  • You might suffer a hack or other security issue resulting in the loss of personal information and/or credit card details
  • If you have employees, then you will require workers compensation insurance, just like any other business
  • If you rely on certain equipment for your blog (for example, expensive photography equipment) then that may need to be insured

If you do choose to obtain insurance, then it is important that you understand the terms of the policy, including what it covers and what it does not. If you are unsure about the risks associated with your blog then you may need to get legal advice.

We hope you found this Legal Guide for Bloggers in Australia helpful.

About Vanessa Emilio

Vanessa Emilio (BA Hons, LLB, ACIS, AGIA) is the Founder and CEO of Legal123.com.au and Practice Director of Legal123 Pty Ltd. Vanessa is a qualified Australian lawyer with more than 20 years experience in corporate, banking and trust law. Follow this link to read the full bio of Vanessa Emilio.