With the proliferation of smartphones and the ubiquitous nature of social media, food blogging has become a hobby of many. From posting filtered photos and recipes on Instagram to detailed reviews on personalised blog sites, these are all food blogging examples in different forms. As with all things enjoyable, there is always a legal side. Here, we examine the potential legal issues of food blogging.

Copyrighting Your Work

As with anything artistic and creative, your food blog is your copyright. This copyright applies to the photographs you take, the words you write and the recipes you created. In Australia, copyright is automatic the moment the work has been done. As long as the work is original and expressed in a tangible form, then copyright applies.

However, to further deter others from copying your work, we recommend you putting an explicit statement of copyright that is visible on your site or page. This statement can be anything from the © symbol, your name and date, to a full copyright licence. This proof will also be good evidence to use in case a dispute arises.

The key thing to remember about copyright is that copyright law only protects the expression or material form of an idea, and not the idea itself. Therefore, while you can copyright the method and technique you have used in your brand new raw vegan blueberry cheesecake recipe, it cannot stop others from also coming up with their recipe for a raw vegan blueberry cheesecake.

Using Others’ Work

A common misconception is that you can take and use the work (e.g. photographs) of others if credit is given to its source. Technically, under copyright law, you are still supposed to gain the permission of the owner of the photograph before being able to use it.
There are some exceptions to this. Firstly, check if the owner of the site has used a Creative Commons copyright licence, which is more particular regarding the creator’s rights. For example, a food blogger with a Creative Commons licence may have chosen to allow others to reproduce or copy their work without express permission provided they are attributed to the author, in which case it is alright to do so. Secondly, if you are using their work under the ‘fair dealing’ exception under the Copyright Act 1968 (Cth), which allows you to reproduce others’ work for the purpose of criticism or review.

Know your Moral Rights

The Copyright Act 1968 (Cth) also confers moral rights upon individuals regarding copyright. What this entails is that individuals have:

  • A right of attribution
  • A right against false attribution
  • A right of integrity against derogatory remarks of their work

If you use someone else’s photo with their permission, it is still their right to have it correctly attributed to them. If not done, you will have infringed their moral right, and the creator of the work has the right to enforce their rights. Similarly, if someone has used your work without attributing it to you, they have infringed your moral rights.

Paid Endorsements

Once your site or page has started to gain traction, you will often find that you are suddenly swarmed with offers by companies for you to try their products and give a review or an endorsement of it on your site. This could be anything from inventing a new recipe for a particular ingredient or doing a cookbook giveaway.

It is important to note that under Australian Consumer Law, a failure to disclose paid endorsements may be seen as misleading and deceptive conduct. Always disclose the fact that you have been asked by a particular company to promote or trial their product, whether or not you are being paid for it. Even if you are doing a favour for a family member or friend, it is also a good idea to disclose your personal connection with them in your post. This is to ensure that your audience and potential consumers are aware of the context surrounding your post.

Be Careful

It is now relatively easy to defame others, whether intentionally or accidentally, on the internet. Before writing and posting something online, consider whether or not it could be defamatory. As the writer, you can be held liable for the material you post if it is held to be defamatory.

It is important also to pay attention to what your commenters are saying. This issue applies in particular if you are running your website and domain for your food blog. A recent defamation case has shown that website hosts are also liable for defamatory content that their users and commentators have posted if they are aware of it under the secondary publisher doctrine.

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Always review your posts before they go online, avoid using others’ work without their permission, and be aware of your rights. For more information, get in touch with an IP lawyer.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Adi Snir

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