What the Fuss is all About and Why it Matters
Social media is about user-generated content which is used across a diverse range of web based systems, enabling people to "socially" interact with one another. The most popular social media websites include Facebook, Youtube, Twitter and LinkedIn, although these are really just the tip of the iceberg. Sites such as these provide a whole new platform for conversation, interaction and opportunities.
Bearing in mind that it took radio 38 years to reach 50 million listeners, TV 13 years to reach 50 million users, and the internet 4 years to reach 50 million people, Facebook recorded 100 million users in 9 months and, as of July 2010, has over half a billion users worldwide and is the biggest single destination on the mobile internet. Organisations and web based users have transferred from being content consumers to content producers. We can no longer ignore social media websites, it's part of our daily conversation. Many organisations and individuals have been using social media to their advantage, recognising that it provides an effective way to instantly communicate with their audience.
However, along with the advantages of social media, there are also legal risks. This article highlights some of the trending intellectual property and media related issues in the social media space.
Using Social Media to Your Advantage
One of the biggest concerns facing those engaged in social media or about to engage in it, is the potential lack of control over what is said or how one is portrayed. Companies can take a conservative approach, whereby all content is reviewed and moderated prior to publication. This gives the operator absolute control of the content that is posted on the website but it is very labour intensive and the operator is assuming responsibility for content. Alternatively, the operator can moderate the site retrospectively. This relieves them of the responsibility for any defamatory or unlawful content, providing that any offending content is removed as soon as they become aware of it. Retrospective moderation leads to a complete loss of control over the quality of the content posted which, given the nature of social media, can lead to instantaneous and widespread damage to the business. Ultimately, irrespective of the way in which a social media site is moderated, the key is to ensure that it is moderated and that there are procedures in place to react quickly to any potentially infringing content.
Trade Mark Infringement
A quick search for any major brand name on Facebook, will often reveal hundreds of results, which typically include some official results (such as a global and country specific entry), many unofficial sites (often mislabelled "official"), fan sites and the disgruntled "sucks" type sites.
Use of Names and Logos
Typical instances of brand misuse (particularly for example on Facebook) are where a brand owner's name and logo is adopted by an unauthorised user. The EU has held that the mere adoption of a company name of itself does not constitute trade mark infringement and that infringement will only arise if the use of a sign affects the registered trade mark's essential function of guaranteeing origin. If a brand name or logo is used but it is clear that the use does not originate from the brand owner, then a finding of infringement is unlikely. Absent reviewing each individual entry on a site such as Facebook, it is not always obvious, at least at first blush, to ascertain what results are official and/or otherwise emanate from the brand owner.
Impersonation
There is very little to prevent an individual or entity from adopting a user name or sub-domain name that incorporates a third party's registered trade mark. Taking remedial action can often be problematic for the trade mark owner, both from the sheer scale of the problem, to considering issues of adverse publicity that may make a bad situation worse.
In addition, there is a lot of uncertainty over the use of trade marks in social media. Both Twitter and Facebook have trade mark policies but they are not so well developed when it comes to dealing with trade mark infringement issues and/or the practical enforcement of those policies.
Twitter's trade mark policy provides:
"Using a company or business name, logo or other trademark-protected materials in a manner that may mislead or confuse others or be used for financial gain may be considered to be trademark infringement. Accounts with clear INTENT to mislead others will be immediately suspended; even if there is no trademark infringement, attempts to mislead others are tantamount to business impersonation".
Twitter has also adopted a specific impersonation policy, stating that:
"non-parody impersonation is a violation of the Twitter Rules...An account may be guilty of impersonation if it confuses or misleads others –accounts with the clear INTENT to confuse or mislead will be permanently suspended."
Facebook's IP infringement policy provides:
"Facebook is committed to protecting the intellectual property of third parties. On this page, rights owners will find information regarding how to report copyright and other intellectual property infringements by users posting content on our website".
The practical operation of Twitter's policy was put to the test in a US case brought against Twitter by ONEOK Inc, who claimed that Twitter wrongfully allowed an unauthorised third party to adopt the username "ONEOK", which was not just its corporate name but also a registered trade mark. The unauthorised user posted tweets about ONEOK which ONEOK Inc said were misleading as they had the hallmark of appearing like an official statement from ONEOK Inc when they were not. ONEOK Inc sought to resolve the issues directly with Twitter and asked Twitter to invoke its trademark policy and terminate or transfer the offending account to them. ONEOK Inc's direct correspondence with Twitter was unsuccessful but after it issued proceedings for trade mark infringement, the account was then transferred to ONEOK Inc.
Copyright Infringement
In the absence of consent, the use of a copyright protected work will amount to infringement (save for some limited exceptions dealt with below). Operators of social media sites typically have terms of use providing that the user is responsible for making sure that material provided by him on the service does not infringe third party rights.
There is considerable risk of copyright infringement for both users and operators of social media sites. It is important that rights owners not only police the use of their works but also that they clear and vet potential copyright protected content which they use.
In the UK, the operator of a social media service is afforded protection against copyright infringement claims if it is a mere "host" of content. In practice this means that the operator must not have knowledge of the infringement and once it is notified, it has an expeditious take down procedure. There is no UK case law on the immunities for information society services providers under the E-Commerce Directive. However, there are a number of cases relating to defamation that have explored analogous principles relevant to the scope of the immunities available for internet service providers (see below). Conversely in the US there has been case law. This summer, Google won a landmark ruling in an action brought by Viacom which accused Youtube (now owned by Google) of "massive intentional copyright infringement" in relation to video clips that appeared on its site. The Judge commented that Google and Youtube could not be held liable for merely having a "general awareness" that videos might be posted to its site without the requisite consent.
Defamation
Social media by its very nature involves the expression of thoughts, opinions and information. This lack of face to face confrontation results in people being more willing to make more negative, aggressive or extreme statements than they may ordinarily express. The use of social media means that these negative statements can reach a global audience almost instantaneously.
There are a number of different ways to respond to defamatory statements which range from doing nothing to commencing legal proceedings. A business may decide to use social media to respond, which can be quite an effective way to reach the same audience which were reached by the initial defamatory statements.
A recent example of a company that has taken a more heavy handed approach to defamatory statements is Kwikchex, an online reputation service provider. It announced that it is launching a defamation claim against the social media site, TripAdvisor, which allows users to review various travel services and hotels. Kwikchex has launched the claim on behalf of more than 400 hotels and restaurants who argue that TripAdvisor has allowed users to post factually inaccurate information about them, causing great damage to their reputations.
Kwikchex also plans to bring claims against the individuals who have made the fraudulent and defamatory comments on the website. Kwikchex will reportedly publish a list of thousands of reviewers whom it suspects have posted fraudulent and defamatory comments and ask TripAdvisor to notify any of their "reviewers" who appear on the list. These reviewers will then have 14 days to remove objectionable posts or alternatively provide evidence that they have in fact stayed or dined at the establishment upon which they have commented.
If the claim does succeed in going to trial, it will be interesting to see the Court's approach. In recent cases, the Courts have tended to side with site operators and held that they are not liable for user generated content, provided the operator has appropriate complaint or take down policies in place.
Data Protection and Confidentiality
The boundaries between public and private information are blurred with regards to social media sites. The current position appears to be that posting on a public site is generally not private unless it is password protected or the user has high security settings in place preventing outside users viewing it.
Social networking sites may enhance collaboration and help companies connect with customers, but they can also make it easier than ever to share confidential customer data, company secrets and negative product information.
Facebook has been the subject of widespread global criticism by formal bodies such as the European Commission and the Canadian Privacy Commissioner. It was recently further embarrassed when it was revealed that users of Facebook 'apps' have had their private information passed on or sold to third parties.
Social media sites collect, store, use and share a great deal of personal data every day which opens these sites up to exploitation.
Concluding Thoughts
Social media reaches billions of people worldwide and will continue to grow. It can be a very effective tool for business on many levels. We recommend that all organisations should have a strategy as regards to social media, not just dealing with their communications but how they police the use of the IP in the social media space and anticipating what steps they could and should take in the event of a serious misuse of their IP. Owing to the sheer scale of social media, rights owners are likely to find it impossible to take action in respect of all infringements and for public relations reasons, may consider a different approach. As is always the case with developing technology, the law is still playing catch up with the ever changing face of social media. As a result, rights owners should take responsibility for policing their IP rights and cannot rely on social media site operators to do so. It is important to be part of the conversation about your business and this involves being proactive, as opposed to reactive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
