409: Legal Hot Topics: AI, Privacy Policies, and Sponsored Content with Danielle Liss

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A blue image of a gavel with the title of Danielle Liss's episode of The Food Blogger Pro Podcast, 'Legal Hot Topics.'

This episode is sponsored by Clariti.

Welcome to episode 409 of The Food Blogger Pro Podcast! This week on the podcast, Bjork interviews Danielle Liss from Businessese and LISS Legal.

Last week on the podcast, Bjork chatted with Helena Murphy. To go back and listen to that episode, click here.

AI, Privacy Policies, and Sponsored Content

The legal side of food blogging can be stressful, overwhelming, and complicated. Most food bloggers don’t get into the business because of their passion for contracts and privacy policies! But that’s why we have experts like Danielle to help us navigate these issues.

In this week’s podcast episode, Danielle is back on the podcast (this is her 9th episode!) to chat about legal hot topics in 2023. Danielle breaks down updates in privacy legislation, shares more about the impact of AI on contracts and confidentiality, and explains the differences between whitelisting and dark ads.

Danielle is a master at explaining tricky topics in a straightforward (and entertaining!) way, and this episode is a must-listen for any business owner!

A photograph of a person typing on a laptop with an espresso and sandwich on the table and a quote from Danielle Liss's episode of The Food Blogger Pro Podcast, "This is not a strongly recommend situation. You need to have a privacy policy."

In this episode, you’ll learn:

  • How and why Danielle helps food bloggers and digital creators with the legal side of their businesses.
  • Everything you need to know about dark ads and whitelisting, and the differences between the two.
  • More about how AI is impacting contracts and brand deals.
  • What you need to know when it comes to AI, confidentiality, contracts, and privacy policies.
  • Details about updates in privacy legislation and privacy policies.
  • About deletion requests, and how to approach them.
  • More about the services Danielle’s businesses (LISS Legal and Businessese) offer.


About This Week’s Sponsor

We’re excited to announce that this week’s episode is sponsored by our sister site, Clariti!

With Clariti, you can easily organize your blog content for maximum growth. Create campaigns to add alt text to your posts, fix broken images, remove any broken links, and more, all within the Clariti app.

Sign up for Clariti today to receive:

  • Access to their limited-time $45 Forever pricing
  • 50% off your first month
  • Optimization ideas for your site content
  • An invitation to join their exclusive Slack community
  • And more!

You can learn more and sign up here.

If you have any comments, questions, or suggestions for interviews, be sure to email them to [email protected].

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Transcript (click to expand):

Bjork Ostrom: This episode is sponsored by Clariti, that’s C-L-A-R-I-T-I.com, and I’m going to give you a really specific example of how you can use Clariti if you sign up today, and that is poster page specific tracking of changes that you’re making. And you can use the notes area within Clariti to make a note anytime that you make a change. An example of when you’d want to do this, let’s say that you’re switching over some of your YouTube videos to be AdThrive or Mediavine video players, you want to make sure that you’re tracking to see, when you look back three months later, the change or the impact that that had.

And personally, what we’ve noticed as we’ve worked on content, is you forget. If you don’t have a system, if you’re not making a note of that somewhere, you’ll forget. And so within Clariti, there’s the ability to leave a note anytime that you’re making a change or improvement on a piece of content to allow you to go back and see how that change impacted things. There’s lots of other ways that you can use Clariti, but I thought it’d be helpful just to give a really specific example. If you want to see what those other ways are, you can go to clariti.com/food to get 50% off your first month. Again, that’s C-L-A-R-I-T-I.com/food to get 50% off of your first month. You can start taking notes on the changes you’re making and explore all the other features. Thanks to Clariti for sponsoring this episode.

Emily Walker: Hey, there, you’re listening to the Food Blogger Pro Podcast, and this is Emily from the Food Blogger Pro team. Welcome to episode 409 of the podcast. This week Bjork is interviewing Danielle Liss from Businessese and LISS Legal. She also happens to be our legal expert, and is a repeat guest on the podcast because we always love having her on and hearing everything she has to say to update us on the world of legal.

In this week’s episode, Bjork and Danielle are covering lots of legal hot topics that I’m sure you have lots of questions about. Danielle explains more about dark ads and whitelisting and the differences between the two, and they dive into how AI is impacting contracts, brand deals, and privacy policies. Danielle also shares some updates in privacy legislation and privacy policies. They wrap up the episode with a discussion on deletion requests, and how you might want to approach them. It’s a super informative episode. Even if legal matters aren’t your jam, I think you’ll learn a lot and enjoy the episode. So we’ll let Bjork take it away.

Bjork Ostrom: Danielle, welcome back to the podcast.

Danielle Liss: Thank you so much. I’m excited to be here.

Bjork Ostrom: I will have to check and see, you might be top three. You’re definitely top three for Food Blogger Pro, general appearances, live Q&As, podcast. So I almost feel like it is our chance to connect, and for me to be like, “Here’s all these questions I have. Can I ask you these questions and record it and then share it with other people?” And we’re going to be doing a lot of that today.

Actually, just the idea to have you come on again came from this conversation that we were having with the Pinch of Yum team and we can actually jump into it right off the bat where we were talking about kind of whitelisting. There’s a brand that came to us and they said, “Hey, we want to talk to you about whitelisting and dark ads.” And we’re like, “What does that mean? Can we figure this out? We need to talk to Danielle.” So maybe before you actually answer that, for those who aren’t familiar or are new to the podcast, can you share a little bit about what it is that you do, and why I’m asking you questions like this?

Danielle Liss: Absolutely. And you just hit my competitive spot, because I’m like, “Only top three. I want to be number one.”

Bjork Ostrom: Top one. Number one.

Danielle Liss: “How do I make that happen?”

Bjork Ostrom: Number one. We’ll have you on again next week.

Danielle Liss: So my name is Danielle Liss. I am a lawyer, and I work a lot with bloggers and influencers, and those who are in the online space. I’ve been doing this for what feels like a really long time in internet years now. I started out working for an influencer network, have been in in-house positions with my firm. And my goal really is to try to help people feel like the legal side isn’t so daunting, because I’m going to be honest, I’ve had a handful of food bloggers coming through selling their site, because they just don’t want to have to deal with any of the non-creative parts.

Bjork Ostrom: Totally.

Danielle Liss: And so-

Bjork Ostrom: It’s overwhelming, and-

Danielle Liss: It’s a lot.

Bjork Ostrom: … people would get so overwhelmed that they’re like, “I just want to release the burden of this and sell this thing.”

Danielle Liss: Yep. And so, since I’ve been seeing more of those, my hope is that if things come up, I want people to have a resource where they feel comfortable, “Okay, this person knows my business, they know what I’m talking about and they can help me try to make sense of it.” There are still going to be people at the end of the day who are like, “You know what? Don’t care anymore. Don’t care. Been doing it a long time-

Bjork Ostrom: Sure.

Danielle Liss: … don’t want to do it. Let’s sell it and cut my losses and go on my way.” But that really is my goal, is to help people so that this feels less, ugh, right?

Bjork Ostrom: Yeah.

Danielle Liss: I feel like most people when they think of the legal side, they’re like, “I don’t want to.” So I don’t know that you’re going to want to, but I want you to feel less dread in that pit of your stomach feeling that comes up when the legal side is mentioned.

Bjork Ostrom: To speak specifically to the process of selling a thing, I think there’s something great about that. We’ve built these valuable assets, they have value in the marketplace, people are willing to pay for them. Even as high up as private equity companies looking at food sites, and I know some people have sold to private equity companies, even if you have a smaller site, anything that is producing revenue is valuable. One of the ways that you can mitigate the stress of it is to sell when it’s like, “Great, if that’s a good opportunity for you, your family, for your mental health. Awesome.”

Another way to mitigate some of the stress around that is to say, “What does it look like to bring people in,” like you said, “to help with the things that are happening on a day-to-day basis that become too much for you?” We’ve made a similar transition within TinyBit where we have Ben who is working with us in a contractor position for a long time. He’s coming in in the role of president and he’s going to be taking on some of the day-to-day tasks that I was doing before. That felt like a lot for me to consider as I was navigating the different things that we have to do.

And just this last weekend, I was at a conference, and this is third hand information, so I won’t use any names, but somebody had mentioned they were having a conversation with somebody who had sold their site years ago. And this person was reflecting on the fact that there was maybe a little bit of regret that they thought, “Man, it would’ve been nice if maybe I would’ve attempted, instead of selling, attempted to create some systems around me or even to bring somebody in to run the day-to-day kind of as a CEO.”

And obviously a lot of that depends on the amount of resources that you have, and some people might feel stuck in this in-between, where it’s making just enough money to be valuable but not enough to hire a bunch of stuff out. But there are little things that you can do, and I would say hiring somebody to review a contract or to work with you on your privacy policy terms, so you don’t have to figure that stuff out. As much as you can become what I like to think of as a super router for those things that you don’t want to do. So a contract thing comes in, like for us, this will be a transition whitelisting or dark ads. How do you figure that out?

I spent 15 minutes and I was like, “I’m going to do some research around this.” And I was like, “Wait a minute. I don’t know if I’m going to be able to figure this out to the point where it makes sense for me to spend four hours doing it. Let’s bring somebody in who does know. Let’s connect with Danielle, and see if she has any thoughts on it.” So a little bit of a tangent there, but I think it’s worth pointing out and a good little note for creators to think about, like you said, how much of the day-to-day grind can you release in order to let you do the stuff that you love?

And my guess is there’s not a lot of people who love legal, which is great because you do, right? And there are people who-

Danielle Liss: Exactly.

Bjork Ostrom: … love stuff that you hate to do in the world. And that’s the beauty of humans and our working relationships. So great to have on, great to have somebody who loves legal to help us out and others as well, and specifically in the space of publishing and social media and all of that. So thanks for the background there.

Let’s talk about dark ads. Let’s talk about whitelisting. I’ve been thinking a lot in our world about how do we be strategic to… let’s say traffic didn’t increase, follower account didn’t increase, what are the other ways that we can be creating revenue? And there’s little things like this that exist where you can say, “Hey, we’re going to charge for whitelisting or offer that as a service or dark ads.” So can you talk about what those are and why those have become more commonplace recently?

Danielle Liss: I’m seeing a lot of it. So once upon a time in, again, the dinosaur ears that I referenced, I think when brands came to bloggers it was, “Can you make a blog post about this and we’ll give you some money for it?” That was how we started. And of course, things have evolved, because at first they said, “Oh, we’re going to own everything.” And it’s like, “No, you don’t get to own it.” So we’ve morphed there in terms of ownership. So now I think that we have a lot of brands reflecting on, “How can we best utilize the content that this person is creating on our behalf and featuring our brand? What can we do with it?”

And I think that I am seeing a lot less in terms of brands who are trying to own content. What I am seeing is much more specific usage requests. So when it comes down to it, the very basic lesson, when you create a piece of content, you own it. That is general copyright rules all over the world, more or less, don’t absolutely quote me there. But for mostly.

Bjork Ostrom: Sure.

Danielle Liss: … if you create a piece of content, as the creator, you get certain copyright rights. And within that, what they want to do is make sure that that is being seen by the most possible people. So because of the different platforms having various ad capabilities, that’s usually what we’re talking about, is they want to be able to promote this. Remember once upon a time when Facebook ads were relatively new, you could buy a Boost, and they would basically just show it to the people who followed you kind of thing, and maybe to some extra people. I like to think of it a little bit like that.

As a dark ad, it’s not necessarily in your stream, so meaning under your account. They are putting it elsewhere for people to see. So that you’re using the actual piece of content you created, I’m going to say you created an Instagram Reel. So they’re going to post that, usually under their own handle, so that it gets more ads and then they can target it in whatever way makes sense.

Whitelisting, on the other hand, is being posted from your account, and that is the biggest difference. It is coming from your account, it is coming from you, but in that case, the brand is typically taking control in some way in order to control the ad itself. So they’re putting the targeting parameters in, they’re paying the budget. I remember so many years ago where brands would say, “We’re going to give you an extra $50 to boost the ad.”

Bjork Ostrom: Sure.

Danielle Liss: Now we have much, much better tech tools. And you can say, “I’m going to give the brand access to this piece of content that I created, and I’m going to let them create an ad campaign around it.” So that’s really what we’re looking at for whitelisting is it is another use. And I really like whitelisting as long… I do feel that, of course, creators should get paid for whatever rights they are granting, but what I really like about it is it has the potential with the brand and control and they’re kind of creating whatever those targeting parameters are to get you in front of new audience.

So it is a potential way to help you grow and it’s on their dime. Obviously, you’re bringing money in and there are certain rights that you’re giving them in order to do that. But I think that there are definitely some benefits there, where it could potentially help you be exposed to a new audience and to potentially gain some followers as a result of that ad being posted.

Bjork Ostrom: And when you say they have control of it, meaning you probably have come to an agreement, “Here’s what the Reel is, here’s what the content around it is.” And then the thing that they specifically have control over is they say, “Okay, we want to show this to the Midwest region for the next seven days, and we don’t want the budget to go over $5,000 spend.” That’s the part that they’re controlling.

Danielle Liss: Well, in the back end of the whatever the platform is that they’re using, there’s typically the ad manager platform. So you’re giving them permission to go in and set that on your behalf, usually.

Bjork Ostrom: Yes.

Danielle Liss: And I’m sure that there are other times where they may say, and depending on how big the brand is, if you have a bigger brand or you’re working with a bigger agency, I think chances are they’re going to just say, “Give us access. We’re going to do the thing. We’ll get it all set up,” and we’re ready to go. But if you have a really small company who says, “Can you do this?”

Bjork Ostrom: Sure.

Danielle Liss: Again, please charge for that. Always, please charge for that. And then, potentially, you may be asked to do it. But I think that from my perspective, there is an element of trust that goes along with this, for sure, because someone is, they’re going to have access to something-

Bjork Ostrom: Sure.

Danielle Liss: … that is related to your account. So you always want to make sure that you feel comfortable with it. But I really like it, because I think that for a while, this is probably what brands meant when they said, “Oh no, we want to own it. We want to make sure we can do whatever we want with it.” And this is probably what they meant, but-

Bjork Ostrom: It gets at the same need just they’re calling it a different thing.

Danielle Liss: Exactly. So it’s another way for you to use your content. It is another way for you to potentially increase revenue from that sponsored content. So I really like it as an option. I just like to make sure, you always want to make sure that your contract is well worded when it comes to whitelisting, because you don’t want them to suddenly be able to have access to run an ad that was something completely unrelated to-

Bjork Ostrom: Sure.

Danielle Liss: … their content. So you want to make sure that it’s dialed in and very specific as to what rights you’re granting, but there is so much opportunity here, I think. And so I’m really excited to see this becoming… It’s just coming up far more frequently. So I really do the direction that we’re moving in, because again, it’s one more potential revenue source.

Bjork Ostrom: So I’m going to use a Paw Patrol analogy.

Danielle Liss: Love it.

Bjork Ostrom: Do you know Paw Patrol? We just-

Danielle Liss: I wish I didn’t, but yes I do.

Bjork Ostrom: Okay. We just went to Paw Patrol Live this weekend, and it was peak experience for both our daughters, especially our older daughter, who’s four, really loves Paw Patrol. And one of the things I’ve noticed is they did the regular Paw Patrol and then they do all these iterations off of it. And one of the iterations is Mighty Pups, where they have these superpowers. And so I think a lot of times we’re stuck in this world here… If I bring it back around, this is a terrible analogy, but it’s a chance for me to talk about Paw Patrol Live. I’ll play it back for our daughter Solvi.

But I think a lot of times in our world we think of organic content. That’s just generally speaking how all of us live. We don’t think of advertising, we don’t think of paying to get exposure. All of it is earned. It’s SEO. It’s followers. It’s viral content. But so many of the brands that we are working with organic is secondary to paid. And almost everything they’re thinking about is paid. And so it’s kind of this mashup of the two, and it’s taking something that we’re used to organic and leveling it up. That’s the Mighty Pups analogy.

You’re putting on this super suit that allows it to do more and they can have more control to get at the exposure that they want. And like you said, what’s so great about that is there’s not a huge downside for you as the creator or publisher, because you are essentially forcing a platform to give your content more exposure. And it also potentially takes some of the pressure off of like, is this going to do well or not, organically speaking? And just saying, “We know it’s going to get exposure, because they’re paying to give it exposure.”

So am I correct in understanding that whitelisting would be on your account, a brand says, “We’re going to go in and boost it,” So it looks like, in our case, it’d be Pinch of Yum and it would be an ad that would show an organic piece of content that was a sponsored content? Whereas a dark ad would be them taking that same piece of content onto their platform and promoting it there. Is that the general distinction between the two?

Danielle Liss: And if that happens, if you have a company who’s requesting that, make sure you get attribution. Make sure-

Bjork Ostrom: Sure.

Danielle Liss: … it’s clear who created that. Because again, extra exposure, I am all for… Exposure is one of those words that I think, I hope that it’s having a little bit of a renaissance, because this is exposure that’s good. This isn’t when we had used to say, “Exposure doesn’t pay the bills” type of thing. This is something that’s going to pay the bills. But I think that it’s a really important thing to consider. What is the benefit to you? And for some people, I think the dark ads make them a little bit more nervous, because it’s one step removed. So it may not have-

Bjork Ostrom: From a control perspective.

Danielle Liss: … the exact same look and feel, but if that comes up in your contract, what you want to make sure of is what can they do? Did they reserve the right to make derivative works? And that means that they might be able to try to edit and modify things.

Bjork Ostrom: Sure.

Danielle Liss: Does it say they can edit? So be really, really clear about what they can and can’t do with that content. As far as I’m concerned, you want to feel comfortable, because the last thing that you want is one of your followers to say, “Hey, I just saw this thing over there. Did you create that? Is that you? You didn’t get any credit? It looks like you, it sounds like, it feels like what you create.” We don’t want that type of marketplace confusion. So I think that in that way, that’s where it’s really important to just look through and if you have questions, if you feel like something in a contract isn’t worded in a way that makes their intent clear, ask for clarification.

You don’t always have to say yes or no. You can say, “What’s this mean? Why? What is your intent here? Who do you plan to push this out to? Let me see if this feels right for the audience that I want to bring in.” Because let’s say I’m their target customer, so you have kind of cranky Gen X lady and if they’re aiming for a college Gen Z person-

Bjork Ostrom: Sure.

Danielle Liss: … maybe I’m not going to be the right fit there, right?

Bjork Ostrom: Yeah.

Danielle Liss: So I think that in that regard, it’s important to have that conversation, because you do want to know who they are going to be driving to you. And I think that if you have any really right line things that are a 100% unacceptable to you, let’s say there was a hashtag that had been overtaken by conspiracy something or others, you want to make sure, do you have approval on it? Can you see what it is? Who’s creating this content that goes with it? Or is it just going to use what you had? Because my assumption is it’s just going to use what you had, but for dark ads, that’s going to be potentially different.

Bjork Ostrom: Sure.

Danielle Liss: So you want to make sure that you are clear as to exactly what that content will look like, so that you feel, to me, it’s all about making sure you feel comfortable with it, and to make sure that along with that comfort, that you feel like it’s been appropriately compensated.

Bjork Ostrom: Can you talk a little bit about the compensation piece? How do you know how to structure a deal if they come to you and say like, “Hey, we want a whitelist”? And you’re like, “Great, that’s nice, because I’ll get some additional exposure from it, but I also know Danielle said on the podcast charge for stuff, so…

Danielle Liss: It can vary depending on what they-

Bjork Ostrom: How do you structure that?

Danielle Liss: … send to you and what they ask you. Sometimes I see that they want it for seven days. Sometimes I see that they want it for up to 60 days. I’ve seen up to 90. So the longer they want to use it for, I think that that should be reflected in the compensation. If they’re planning on this being a quarterly piece of advertising for them, that’s pretty significant. So I think that have that conversation and it’s always going to depend on where do your rates fall, typically.

Bjork Ostrom: Sure.

Danielle Liss: Because the way that I view it is you probably have a rate in your head that, let’s say, you’ve got a rate that you use for one sponsored Reel. So you’re going to take that and that’s for one sponsored Reel that you post, no add-ons, no frills, whatever, it’s just featuring the one thing, each time they want to add something to it, then that rate is what’s going to shift. So there, if they say, “We want to do a week’s worth of whitelisting,” that might not be super expensive. But if they come to you and they say, “90 days,” then of course that’s going to change there.

So really just try to make sure that it reflects exactly what’s coming up. I view them somewhat similar, not exactly because obviously it’s different. But like an exclusivity clause, I see a lot of exclusivity clauses, and for those not familiar, that is when you are not able to work with competitors or other… there’s restrictions on what you can and can’t post over a certain time. So if a brand came to you and said, ’We need exclusivity two days pre, two days post,“ that’s not a particularly long time, but if a brand comes to you and says, this is going to be a long-term ambassadorship, you are going to be our person, you cannot post about any other source for this particular product for the next year,” that’s obviously going to be expensive.

So think of it that way. What is the duration? What are they looking to do? And you can ask more questions about it, because if you find out this is a smaller brand that’s planning to put a $100 into their advertising budget, that’s very different than if they’re planning to put $10,000 behind it. That’s where I think asking questions is going to be really important, so that you can start to figure out what does their budget look like? What makes sense here? And then you can price it accordingly.

Bjork Ostrom: Sure. Have you seen it as a percentage of spend? Is that something that occasionally will come up?

Danielle Liss: I haven’t seen it. That doesn’t mean it’s not out there.

Bjork Ostrom: Sure.

Danielle Liss: I think that’s probably harder to track, but I think that if they gave you a quoted budget, you could probably make it work that way. A lot of times I think people want to know what the price is going to be prior to something being published. So if they say to you, “We’re aiming to put $5,000 behind this,” and you know you want to do 10% of it, great, okay, that’s an additional $500 fee. I think I did the math right. I’ve gotten math wrong-

Bjork Ostrom: It was good. Good on the fly.

Danielle Liss: … on a past episode. And I went-

Bjork Ostrom: Sure.

Danielle Liss: … “Darn,” I’ll always remember it. But that said, that’s where I think asking questions about what they want to do and what their plans are can really help you, when you’re putting together that proposal and that pitch for them.

Bjork Ostrom: It’s almost like there’s so many variables involved that require you to not only gauge the benefit for yourself, but also what they’re after. What are they really interested in doing? So in the case of a grocery store that is sponsoring Pinch of Yum, if they’re like, “Hey, what we want to do is we want to put a $1,000 behind it to really boost this in the Twin Cities area.” It’d be very different than if they said like, “Hey, we want to put a $1,000 behind this in order to give it more exposure in the Midwest.”

We would probably anchor our pricing off of what they’re thinking of doing with it. But maybe if they’re like, “We can’t pay you anything,” maybe this is a leak for all the brands out there that would want to work with Pinch of Yum, we’d still be like, “You know what? To get an additional three million people viewing it, that would be beneficial for us.” So we’re going to not be as strict around our pricing for whitelisting, because we like the upside of it. So it feels like a lot of things when it comes to any type of contract is it depends.

Danielle Liss: I have a shirt that says, it depends. I have a sticker on my computer that says, it depends. I stand by it. But one thing, I know how data-driven you are, so I personally view this as let’s do one as an experiment. Let’s see what happens. What was the upside for you? How many new followers did you get from this? Because then you really can look at it. If they don’t have a budget, and like you said, if they’re planning to put $25,000 in it, “Okay, here’s what we got when somebody else invested this, can we expect the same type of result? And does that make it worth it for us?”

And I think that for some companies and for some influencers that might make sense. So it may not be that you are always going to charge more, but I do think it’s a conversation worth having, and saying, “Sure, yeah, the rights to do this…” Just when, I guess print ads still happen, but-

Bjork Ostrom: Sure.

Danielle Liss: … there would be, I remember those days where brands would be like, “We need your high rise images, because we’re about to turn this into a magazine ad, too.” Well, obviously, that you’re going to charge money for, it’s just an additional usage of the content that you created. So what makes sense for you?

Bjork Ostrom: That’s great. Transition here to a hot button issue that feels like everybody’s talking about for reasons that are understandable, AI, artificial intelligence, extremely applicable for those in the content world. Also in this world of sponsored content, like we’re creating these deals and we’re structuring these relationships that are around creating content, and suddenly creating content looks very different potentially. Can you talk about anything that you’re starting to see in terms of language within agreements as it relates to the use of AI?

Danielle Liss: This is super new. Meaning, it is super new that I am seeing things in agreements and I’m being asked more questions about it. And I’m thrilled that this is on people’s minds. I think that where we are going to see things come up, and I do think that it is important, so let’s say brand comes to you and brand says, “Okay, you are going to create content for us, it’s going to be a 100% original.” That to me means it is a 100%, original and not assisted by software. But then if you think about it, if somebody uses even Pinterest for keyword research or something, does that count? Where’s the line? So.

I feel like keyword research, that type of thing, probably don’t need to worry about that. What we do need to worry about is when you are using something, whether it’s ChatGPT or I’ve heard from my copywriter friends that there are many other very outstanding tools that are being used to help you. And even if it’s just one of the tools that helps you write really good headings for your content, or sometimes it’s a matter of, “Eh, I’ve been really repetitious, I just want to say this differently,” pop it in and ask it to rephrase something for you. But is that allowed?

And first thing you want to make sure of, is it going to violate any type of confidentiality provision? Because I think that that is critical for you to know if you put these words in, does it have anything that’s deemed confidential information? There’s already-

Bjork Ostrom: You talking about that specifically, and you’re just maybe going to get there, that case that exists and what’s happening when you’re putting that information in.

Danielle Liss: Yep. I’m not even going to say the brand because I’m afraid I’m going to get it wrong. But there was a very large technology brand and someone was using AI to generate content, and they inputted confidential information. Well, the AI tools are using everything that’s input as learning devices. So they put something confidential in there that is now available for really anyone. Those things are out there. So I think-

Bjork Ostrom: It says computer memory company Netlist convinced a federal jury in Texas on Friday, this is April 21st, to award it more than 303 million for Samsung Electronics infringement of several patents related to improvements in data processing. Is that the one that you’re thinking of?

Danielle Liss: Mm-hmm. So be careful. And for a brand, I think that when this comes up most frequently… Now, if you just don’t like the way that you have phrased something, it’s a small paragraph, it doesn’t even reference the brand, if you put that in, I don’t think that’s going to be a big deal. What is going to be a big deal is let’s say company comes to you and says, “This is embargo. This is a brand new product launch. We need this to go live when the product is released to the public.” If you start putting that information in, that is a problem. And it may be that there are other ways to do it. Maybe you say, “Give me five ideas for a party poster,” something like that-

Bjork Ostrom: Sure.

Danielle Liss: … that are a little more benign. But be very careful with what your inputs contain, because if it is confidential, there is the potential risk that you are violating a confidentiality clause. So that-

Bjork Ostrom: This probably depends on the platform and the privacy rules around the platform, but the idea is you’re inputting information which is then is potentially living in that database and then is a set of information that the database then trains on and could be reproduced in another way. So if somebody were to say, in this case, who knows if this is actually what would happen, but, “Tell me about the computer patents related to Netlist’s upcoming release,” or something like that, it’d be like, “Here’s some information on that.” Is that the idea?

Danielle Liss: Yep. That’s what you want to be careful with, just in case. And I think that that is one of the many things that is a potential issue, but the bigger issue that we have when AI is involved is who owns what? And generally speaking, you can’t copyright something that is computer generated. If it is something that you have modified, then yes. So if someone is asking you for original content that you have created and you’re using AI and that’s depending upon the level that you’re using it, are you then changing it? Did you just use it for a prompt? Did you use it for a heading? What extent did that look like? I think that’s one of the more important pieces of the conversation. And I feel that for most agreements, I’m a big believer that everything should just be super transparent in your agreements.

And I think that you can say, “AI tools are forbidden except for…” Or I should have thought through how would I draft this? But I would say something like-

Bjork Ostrom: Sure.

Danielle Liss: … “You who is sending it, brand understands and agrees that content creator may use AI for X, Y, and Z uses. These are approved and do not violate any terms.” I think that where we are going to see this come up is when people really are creating things strictly from AI. And it may be that you have a brand that comes to you and says, “No, no, no, we’re cool. We are fine if it’s just AI. We literally just want you to post it to the site.”

Bjork Ostrom: Sure.

Danielle Liss: And then that’s kind of your choice as to what your comfort level is. I think that we’ll start to see brands who are looking at that as a more bargain driven option, shall we say. But-

Bjork Ostrom: “We’re not going to pay you as much, but you can create the content faster, as long as we just get in front of people.”

Danielle Liss: And again, to reference my dinosaur years, this would be like when a brand would just send a press release out to you and say, “Hey, we did this thing, would you post our press release on your site?”

Bjork Ostrom: Sure.

Danielle Liss: It’s kind of similar to that. What do you want that to look like? We’re seeing a lot of discussion and there’s no super clear cut answer on this, because again, things are developing type of news story, I think that we’re going to need to see more disclosure on things like, “This has been partially contributed to by artificial intelligence,” or whatever that looks like. Just to make sure that it’s clear for your audience too, because that’s important. I’ve always said that there’s nothing worse than when the brand just tries to recreate something and it’s not in your voice and it just looks really phony to your audience, and they’re like, “This doesn’t right sound right.” And that’s the easiest way to have bad sponsored content, as far as I’m concerned.

So I think that that’s really important. But the other side that’s also important is if you have a team who creates on your behalf, whether they are creating recipes, the blog posts that go with them, anything really, you want to make sure that, are you familiar with how they are using AI tools as well? For the same reasons that we just talked about. If you think that you’re creating something original for a brand, but you have a team member working on it and they’re actually using AI, where does it all shake out?

So I think it’s all, just make it a transparent discussion for the moment where you can say, “Here’s what we’re using. Here’s how we use it. We’re using it for headers, potentially for paraphrasing for this. We are not using it for full post creation. Everything is still in our voice. It’s edited. We make sure that any sources are correct,” that type of thing. So my view on it is, let’s just be cautious. It’s a powerful tool and it’s potentially a fantastic tool to assist people, but we just want to be sure that we are being careful and that we’re not breaking any contract terms by using it.

Bjork Ostrom: That’s great. When I think of what we do, so much of it is around attention and influence and usually those go hand in hand. And I think one of the great benefits of tools that are in the AI space is that they’re really good. They can get you information. They can really help in the process of creating content. That said, I think one of the advantages that creators will have moving forward is to write or to create in a way that is a level above what artificial intelligence can do from a content creation perspective.

And I think what’s happened, or what will happen if I were to predict, is that there’s going to be, especially in the world of SEO, so much of SEO content, especially in the past five years, has been written information based content, which there’s a reason why. It’s because it worked, right? And so people would rank well, they’d have information. But I think the humanity in what we’re creating and story will become even more important moving forward, because as pure information becomes more of a commodity, when you’re able to scale up the ability to create it, you’re looking for something that is going to be able to impact in a way beyond that commodity.

And I think story and a true following people, who are like, “Hey, I follow this person,” as opposed to, “I’m going here to get this information.” Those creators are going to be the creators that are going to win in the long run. And I think even within contracts, and I would be interested in hearing you say this, or press kit explicitly stating it as a benefit, “Everything we create is original and we touch every word that we’re crafting,” as an example. And I wonder if that boutiqueness to the content creation process will be a competitive advantage or a differentiator moving forward. And it’s probably what’s happening now with most creators anyways, but just calling that out could potentially be a beneficial thing.

Danielle Liss: I think it will be. I’ve talked to a lot of friends in the creative space, especially copywriters, and there was definitely a period of panic, but I think now they’re realizing this is a tool that I can use, but it still doesn’t come out quite how they want it. So maybe we’ll get to the point where it really can, with whatever the content, the output looks a bit more like what we would expect to see from a true content creator. But I think that for right now, it’s a good tool. I don’t think it’s anything to be afraid of, but I do think that there is going to be what differentiates you.

Like it’s beyond niche, it’s beyond how many views that you have. It is the level of care that you put into the creation of that content. I think it really does make a difference. And I can think there is a brand once upon a time that I saw on Pinch of Yum on Instagram, I am now a ridiculous diehard fan of that brand-

Bjork Ostrom: Okay, all right.

Danielle Liss: … in a not super weird way. But that said, there is still something that’s going to have that look and touch and the feel of knowing that content. Even if you used it for a headline, to know that you created that, I still think that there is something that matters there, that comes from a particular person or point of view. Whatever that looks like, it’s that voice and that audience dedication. That’s really what people are concerned about.

Bjork Ostrom: And there will definitely be impact. Like information is going to be distributed in a different way. People get information in a different way. There’ll be a lot of information that you can get from AI. And already has been true for me, because I interact with it. I’m trying to interact with it more. But I don’t think the ability to speak to other people and to influence the lives of other people, hopefully for the better, that’s what we’re all trying to do is do that for the better, I don’t think that goes away. It just changes in terms of what type of information that we’re delivering is most valuable and also probably the medium in which we’re delivering it. Example being, a podcast or a video is harder at this point to replicate than written content. And so I think there will be some shifts there as well.

One of the things that we’re seeing when we talk about the distribution of information is that, in order for that information to be accurate, which it isn’t always, it often isn’t accurate-

Danielle Liss: Yes.

Bjork Ostrom: … but in order to train those data sets, what’s happening is these AI bots are crawling content, blog posts, websites, they’re getting that information, and then they’re bringing it back in a similar way to what Google would do. But the difference, and we’re starting to see some of this change a little bit, but the difference is Google brings that back and it provides a link. You click on that link and then you go to the content and that’s the kind of value chain that exists. We’re going to let you, Google, put our information on Google, because we know we’re going to get something back valuable from it, which is a visit.

That breaks down with AI, because this information is being ingested, it’s being created, kind of compiled in a data set and fed back in different ways based on a prompt. But it’s all created off of content on the web, but there’s not any credit given. People aren’t coming back to the original source. And I think especially in the next year, we’re going to see a lot of shifts with this. And already you’re starting to see some recommendations from different people.

I’m thinking of an email that came from Raptive, for those who unfamiliar Raptive, rebranded AdThrive. They sent out some information around like, “Hey, here’s a potential snippet you could include in your privacy policy about not letting AI crawl your site.” It doesn’t actually stop AI from doing that, but you work a lot with privacy policies. You actually have a business called Businessese around making it easier to do kind of the day-to-day things that we need to do with privacy policies in terms and things like that, terms of service. Do you see that as something that we should start to think about is including a disclaimer around AI crawling our site content and what’s the benefit of that?

Danielle Liss: I don’t think it hurts. I think that right now it’s really hard to say, “Is there going to be a way that you can…” Think of a do not call list, is there going to be a way that you can say, “Do not use my website in the following ways.” Some sort of database that will bring that information in. So for right now, I think that having something in your terms that says this information is copyrighted, we own it, you can’t use it, you cannot use it to teach AI, you cannot use it for any of the following things. I will always say that is a good idea, because it is making your policies very clear. So that way if they are using it and you say, “Where did you get this?” And someone says, “Oh, I just copied it from” whatever AI source that they got it from.

If that happens, then you can say, “Okay.” And I think that what’s going to happen is person A is going to try to sue person B for copyright infringement, but the problem is there is AI in between them.

Bjork Ostrom: Sure.

Danielle Liss: So it’s going to come down to whose fault is what. And I’m pretty sure that the AI tools will say, “It’s person B, because they’re the ones who use the content. We work the magic.” So I think that it’s probably something that we are going to see a lot more of coming up in terms of future litigation and seeing really where the courts fall. But I don’t think it’s ever a bad idea for you to be able to say, “It’s a very clearly stated policy on our website that we are not available for the following uses.” So I do the idea of adding it. My hope is that there will be something that is, I don’t know, some sort of technology based, whether it’s tagging, like a no-follow tag.

Bjork Ostrom: It’s like robots.txt-

Danielle Liss: Yeah.

Bjork Ostrom: … which communicates to search engines a similar thing for AI. I wouldn’t be surprised.

Danielle Liss: Yeah. My hope is that we start to see an option that come out that will be more broadly recognized. Because I’ve seen talk of some things, but I don’t think that they are sort of that universal acceptance yet. And I think that’s what we’re going to need to see. Because first of all, that’s going to make a really big difference in what are the tools using and can they differentiate between these things. And that also is really important for people to know in terms of what can they use the tools for and what is the potential liability that they have in utilizing those tools, because I think it’s just going to take a couple of larger verdict cases for somebody to be very afraid to do that.

Bjork Ostrom: Sure. A kind of class action lawsuit kind of thing where somebody comes after a AI company and says… And you’ve already started to see this with some of the image based AI companies where there’s the watermark of Getty Images that is showing up on some of those, and it’s like, “Oh, you’re very obviously scraping a database of protected images in order to train your model on how to create other images.” And lawsuits that have come as a result of that.

So it’s interesting, it feels like we’re still very much in the fog of all of it. And my dad always says, “Ambiguity breeds stress.” And-

Danielle Liss: Oh great.

Bjork Ostrom: … it feels like that’s the season that we are in as publishers because it’s really ambiguous. We don’t really know what’s going to happen. And as we start to understand it more, it becomes less ambiguous and less stressful. But I think it’s important for us to be talking about it and fill out the picture and each day new information comes out. So-

Danielle Liss: Yes.

Bjork Ostrom: … conversations like this really help to fill the picture out a little bit. Anything else, Danielle, that you feel like in your world that you’ve heard a lot of people talking about? My guess is a lot of the one-on-one conversations you have gives you a little bit of a pulse on where the mindset of creators and publishers is at. Anything else that you feel like would be important to shine a light on that you’ve kind of seen as trends or conversations or curiosities that exist in the world of creators and publishers right now?

Danielle Liss: I’m afraid to even say it, but I have to-

Bjork Ostrom: Do it.

Danielle Liss: … and that’s privacy legislation. It hurts my head to think about. I know it hurts a lot of publisher heads and that’s the number one thing that I hear reference, that, going back to the very beginning when I talked about people want to sell, it is so stressful to keep up with the various privacy legislations that are out there, particularly for sites that are monetized with ads. I saw recently we have another new state to add to the mix. Iowa’s joining with some data privacy legislation. They don’t go live until 2025, so don’t get super stressed about them yet. California is still by far the largest state, meaning population wise. So I think that they get most of the attention, and also their laws tend to be strictest and then people follow that.

But I think that as far as privacy goes, what I want people to think about is you need to have a privacy policy. This used to be one of those things where I was like, “we strongly recommend it.” This is not a strongly recommend situation. You need to have a privacy policy. And you need to be clear about what data you collect and what you do with it, how you use cookies, that type of thing. If you have an EU audience or UK, because now after Brexit, there is a separate UK law-

Bjork Ostrom: Sure.

Danielle Liss: … that’s beyond GDPR. I think it’s… I’m going to get it wrong, so I’m not even going to say it. So there are all of these different state laws as well that come into things. So you are going to need to know your audience and you are going to need to be able to find where people are coming from.

For the states… Hold on, I actually have a list typed up because I always forget somebody.

Bjork Ostrom: Love it.

Danielle Liss: So, okay, California, Virginia, Colorado, and Connecticut, California and Virginia, everything is active as of January 1st, 2023. Colorado and Connecticut go into effect 7/1/23. Utah is 12/31/23. And then as I mentioned, Iowa, they come into play in January of 2025. For most of those states, what you need to look at is how much do you have in terms of your overall audience is coming from there. It’s typically measured on a 12-month period. Do you have more than a 100,000 visitors who are coming from any of those particular states? If yes, you likely need to be compliant.

That can vary. So I strongly recommend that if you have a larger audience coming from those states, it is probably time for you to talk to an attorney about having a privacy policy drafted that’s going to make sense for you. Now, if you are good diving into the data and really getting in there and figuring out each state, absolutely, you can wrangle it. But I think that for a lot of folks, this is where I’m seeing people really get stuck. And they don’t want to. They don’t want to deal with it. So that’s where I recommend, this may be the time for a lot of folks for you to say, “You know what? This is where I’m going to send this out to a third party to manage this.”

And then they can work with you and say, “Okay, tell me where your traffic’s coming from. Tell me what you’re collecting, tell me what you’re doing.” And sometimes it’s a matter of doing a basic audit to say, “Yeah, here’s where I think you fall.” It’s kind of like the lawyer decision tree, if you will. And from there, I think the key is making sure that not only do you have the right privacy policy in place, but that you are doing the right thing with the data when it comes in. I know there are a lot of plugins and tools out there where it may be your ad managing network or whomever that you’re working with says, “Okay, we have the California opt-out button on your site, you’re good to go.” What happens when a deletion request comes in? What do you need to do there? So in-

Bjork Ostrom: Can you talk about what that is? Just-

Danielle Liss: Mm-hmm.

Bjork Ostrom: … at a high level, a deletion request.

Danielle Liss: So a deletion request based on, I think I can generally say, all of the various laws offer some sort of right to delete. And that means that if you are collecting certain information about a person, that they have the right to ask you to delete that information. And sometimes it’s a right to modify, sometimes it’s a right to review, right to access, depends on which legislation we’re looking at.

So for California, if you are on any larger company website and you scroll down to the bottom, you’ll see either a link that says, “Do not sell my information, California residents,” something like that. But they also have this little button, I think it’s blue, it has an X, something like that, because they are opt out states, so they have to actually come to you, and opt out of you sharing that personal information.

And so the deletion requests you will receive, they have to follow specific rules based on where they are. They have to be able to show, “Yeah, I’m eligible to make this request under California law.” I’m in Las Vegas. I can’t just try to say, “I can use the California law to request my stuff be deleted.” So they’ll send you something that says, “This person requested to delete.” And I’ve seen a lot of folks feel like this low level panic when those come in, because there are deadlines that you have to follow. You have to respond within a certain period of time. You have to take certain actions. And typically, for what I am seeing most content creators doing, they are not extremely stressful situations like you are not likely going to be unraveling tons and tons of stuff. A lot of times-

Bjork Ostrom: Sure.

Danielle Liss: … it’s a, “You made a purchase, do you really want us to delete that?” Or, “We’ve taken you out of the ad system and you’re off of the email list. You’re good.”

But what happens when that comes through? And I think that those are really the things that are making people more anxious, because it does seem incredibly formal to get a request like that. So if there’s anything that I can say, it’s, don’t panic when you receive them. You’ve just got to go through what the steps are. And if you have a lawyer that you’ve worked with on your privacy policy and if you don’t want to deal with it, call that lawyer and say, “Hey, can you help me navigate what this process looks like?” It’s usually not overly complicated what you have to do for the response. It’s verify the identity, you check and see what you have, and then you can go from there.

But I think that that is where people are feeling very concerned, because it does feel extremely uncertain and unknown, and people are very worried, am I going to get sued for this?

Bjork Ostrom: Sure.

Danielle Liss: I’m pretty sure that California is the only state that allows a private right of action, so meaning that someone could potentially sue you for it. And I think it’s like a $750 fine. No one wants to get a $750 fine. I completely agree with that, but I don’t think that for the average blogger, we are likely looking at a situation where you’re going to see some of the headlines, like this company was fine, a million dollars. That’s I think the fear that we see. And the first company, not going to be meaning to name overly names, but it’s a certain black and white themed beauty brand, they were one of the first ones that I saw had a bigger fine come through-

Bjork Ostrom: Sure.

Danielle Liss: … the California legislation, and it was a couple million dollars. But think about the level that they are operating at.

So I don’t that for the average person, we’re going to see super crazy fines or anything like that. But it is still important to be compliant, because without being compliant, that is where you’re opening yourself up to having something happen. So much better to just know, okay, when this happens, I do this. So kind of like what you talked about at the beginning, have a system in place, I get this request, here’s what I need to do, and you go through whatever your system is for it.

Bjork Ostrom: And in the checkboxes then that we would want to be thinking about as publishers, making sure that our privacy policy is up-to-date, up-to-date, meaning accurately reflecting the requirements of not only federal legislation, but also the state by state legislation that exists around certain privacy considerations. So that would need to be updated in our privacy policy. We’re not going to talk about how to do that, but you want to make sure that’s up-to-date.

And then if you ever do get one of these requests, the request isn’t a bad thing. It’s like a version of unsubscribe, but instead of unsubscribing, it’s like unsubscribe, but clear my data. It’s like I don’t want my information to be owned by you anymore. And the idea with all these privacy acts is that we own our information and we should have control over it. So if we want a company to get rid of our information, we should be able to ask for that. So that’s what’s happening.

And so like you said, it doesn’t have to be this thing where you’re really nervous about, you just have to know how to get rid of that information in the different applications that you have, the different things that you’re using, and then follow up with that individual to say, “Great, it’s been taken care of.”

Danielle Liss: It’s done.

Bjork Ostrom: And it’s easier to do that if you have somebody who’s done it before, an attorney. If you don’t have that, figure out what the system is, you can figure it out with all the different platforms and applications that you use. It’s obviously going to be a little bit more time intensive, but still not insurmountable in terms of a task for you to do.

Danielle Liss: I agree. And I think the other piece is make sure what’s happening in your website. Really look at what plug-ins you have. And if you work with a designer or somebody who does maintenance on your site, ask them, and say, “What do I have?” And you can go to whatever the privacy policies are for the various plug-ins or whatever the terms of service are, and really see what they are doing so that you have a good understanding of, “Okay, if I get that California deletion request, what do I have that’s collecting information?”

And for a lot of bloggers, what’s being collected is behavior that goes toward advertising. And I’ve often seen that handled by the ad management services.

Bjork Ostrom: Sure.

Danielle Liss: But do you have other things that are collecting information? A lot of times it’s newsletter, and so people will check, see if it’s in the newsletter. It’s usually things along those lines. And for the most part, when I’ve helped people with dealing with deletion requests, we haven’t had surprises, I’ll put it that way. Because they know what’s in the system, they’re like, “These are the plug-ins that I have. Do I need to worry about this? Have they used it? Have they done anything?” And they’ll be like, “I have no trace of this person whatsoever.” Great. Then they probably were taken care of by requesting to delete with the ad management service.

Bjork Ostrom: That’s great. So my guess is, Danielle, there’ll be people who are listening to this and they’re like, “I know I want to do this. I know I want to do it right, and I don’t want to do it, personally.” So that’s why your business exists. That’s why we have these conversations with you, not only to get the information, but it’s also a great outlet for those who want to work with you. Can you talk a little bit about the services you offer? And how people can connect with you if they want to follow up?

Danielle Liss: So I have two businesses. First is Businessese, which is DIY legal templates. And there are many that were specifically made for bloggers. Depending on when this airs, Businessese has been going… let’s just say it’s a very long makeover process.

Bjork Ostrom: Sure.

Danielle Liss: And so new content has been on hold while we are dealing with that, but I expect mid-June, all of our updates are going to be released. So there will be updated privacy, so that it’s got all the states in it, besides California, that type of thing. And then if you are somebody who wants to work directly with a lawyer, I have a second business, which is my firm, LISS Legal. And there I work with you for whatever you need on the personal side, if it’s contract review, if want somebody to work through website policies with you, trademarks, things like that. It really just depends on where you need legal assistance.

And I also offer, because there are a lot of people who come to me and they’re like, “I think I need a lawyer, but I do not know for what,” so in those cases, I also offer strategy sessions. And so even if you’re just getting started and you’re like, “I just need to know what’s coming down the road for me. When do I need to look out for certain things?” I love having those conversations, because it’s just so exciting to be with somebody when they’re just getting started on their business and then kind of watching how that grows. So there’s a lot that we can assist with, and I’d be happy to help anybody who wanted to reach out.

Bjork Ostrom: Awesome. LISS Legal, L-I-S-S L-E-G-A-L, Businessese is one of those words that I personally every time I spell it wrong, but it’s business-E-S-E, maybe that’s-

Danielle Liss: Yes. That’s what I always tell people, because people are like, “Is it businesses?” And I’m like, “No promise. It’s not.” It wasn’t supposed to be.

Bjork Ostrom: So check those out. Danielle, as always, so great to talk to you.

Danielle Liss: Thank you so much. It’s been a pleasure.

Emily Walker: Hello, hello, Emily from the Food Blogger Pro team here. Before we sign off for the day, I wanted to pop in and chat a little bit about a resource that all Food Blogger Pro members have access to, and it’s called our tools page. The tools page is home to tons of different tools and downloadable resources that can help you stay organized and working towards your blogging goals.

So a little sneak peek at some of the resources that are available to you on the tools page. We have an amazing SEO checklist, a social media checklist. We have a brand email template for pitching yourself to companies for sponsored content, and an email marketing workbook. We also have a great super handy image size checklist and even more resources available to you. So you can download any of these resources right to your computer and reference them whenever you need them.

If you’re not yet a Food Blogger Pro member and you want to join to get immediate access to these resources, head to foodbloggerpro.com/join to learn more about the membership and community and get started today. We hope you enjoyed this episode of the podcast, and we can’t wait to bring you another good one next week. But in the meantime, hope you have a great week.

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