30 technology: social networks
How exposed is IP to the pitfalls of social media?
Social media is one of the biggest developments of the decade, says Paris Smith’s Laura Trapnell. It is difficult to watch the television or purchase something online without being encouraged to blog, comment, tweet, like or share. Social media is becoming one of the largest marketing and publicity tools for many businesses and is a great way to develop and popularise a brand. However, before your business jumps on the social media bandwagon, take a step back and consider the legal implications and ramifications with regard to your own (and third party) IP
Setting up an account
Before creating an account, do your research. As with trademark freedom to operate searches, be mindful of whether your account is identical or similar to another account already in existence. If you set up an account which is identical to or similar to another account/ brand or individual, there is a real risk that this could have an adverse affect on yourself or your business.
The prior account holder may raise an objection with the social media site’s administrator. If, after investigation, an adverse decision results in your account being removed, all your contacts, posts, recommendations and goodwill you have generated will be deleted.
Furthermore, where your account is so similar that there is a likelihood of confusion, there is a risk of legal action against you or your business in respect of passing off or trademark infringement. This could be detrimental to your brand as well as being a costly exercise in terms of time and money.
Protecting the work you share
When setting up your social media account make sure you read the terms and conditions of use. Many social media platforms have detailed provisions regarding the ownership of material posted by users. For example, Facebook’s terms and conditions state that “Facebook has a non-exclusive, worldwide, transferrable, royalty free licence in relation to the information posted by a user“. Twitter has a similar licence, with the “additional right to sub-license“ and LinkedIn goes even further to allow
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themselves the right to “modify and use information published“. This has specific copyright policing and enforcement issues where dissemination of material ’takes off’ and is particularly noteworthy for those businesses using such platforms to promote their work.
’Terminating’ such licences in order to regain proprietary control is difficult where information has been shared and re-posted as systematic deletion of material is pretty much impossible, as several unfortunate ’models’ have found out when unauthorised photographs are shared and re-posted without consent. The terms and conditions for Facebook state that “the licence will continue for as long as the information is on Facebook“. This is regardless of whether the individual user has closed their account or removed the content. Accordingly, if friends re-post or share your material, your control over it will be significantly reduced.
Infringement risk
Many individuals and businesses re-post photo/articles/posts they have seen using social media. The purpose behind sharing such information varies, but the risk of defamation, copyright or trademark infringement remains the same.
• Defamation
’Tweeters’ use the platform to proffer personal opinions and seem to forget that, unlike a text to a single person, they are often ’talking’ to thousands of followers. As Sally Bercow found out recently, tweeting is a means of disseminating information (whether your own personal view or otherwise) to the public at large and
therefore falls into the remit of defamation law.
Employment case law abounds with regard to employer’s liability for defamatory statements made by employees over the Internet. Historically liable for employee’s misuse of the corporate email, employers are now facing increasing liability in respect of defamatory Facebook statements and tweets and are relying on legally-drafted social media policies to restrict liability where possible and protect their own reputations.
• Copyright
Generally speaking, the owner of the post/photo/article, is the person who created it, subject to subtle legal variations. When such material is uploaded to a social media site by the copyright owner, the owner impliedly grants the social media site a licence as described above. When someone copies that work without the permission of the copyright owner and re-posts it, this is an arguable copyright infringement. Similarly, when someone uploads a piece of work without the express permission of the owner, this may constitute a copyright infringement, as not only do you not have the permission to use the material in this way, but you are also granting a licence to the social media site for the re-use and re-publication of the material, without the consent of the owner.
It is important to ensure that permission is sought and also that reference to the copyright owner is made to reduce/limit damage. To protect your own work, you
should ensure that anything you post has a formal copyright notice attached to it.
Remember, just because material is in the public domain does not mean that it is no longer protected.
• Trademark
The use of trademarks as adwords in social media has attracted significant attention and litigation. The liability of service providers advertising such adwords for sale is now clear as are the parameters of using competitor’s brands as adwords.
There is lengthy legal discussion on the subject, but thought must be given to the use of trademarks (not only as adwords) from the position of protecting your own brand and being aware of the limitations on use of the brands of others as adwords. Registered trademarks have a protection system all of their own. But there are also common law rights to prevent the misuse of the goodwill associated with unregistered brands and care should be taken when considering which adwords to use with SEO.
Social media can be an excellent way of developing awareness of your brand. But as with all Internet use, ensure that you are aware of the risks.
Details: Laura Trapnell 023-8048-2114
laura.trapnell@
parissmith.co.uk www.parissmith.co.uk
THE BUSINESS MAGAZINE – SOLENT & SOUTH CENTRAL – SEPTEMBER 2013
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