May 15, 2019
The perils of posting on social media
Who doesn’t love social media? We all tweet, post, share, and upload like there is no tomorrow. It allows us to directly reach large audiences and interact with others in real-time. Social media is also fast becoming an important tool for businesses who use it to educate, inform and communicate with the public.
But there are things to think about before going on a posting frenzy:
The ethos of social networking sites is sharing. We share information and images all the time online. BUT simply because we have access to photos / images / content online does not mean that we have the right to use them.
Photos, for example, will usually be protected by copyright as artistic works, which means that you will need permission of the copyright owner before copying the image or sharing it online. Using a photo WITHOUT permission of the copyright owner (such as the photographer) could be a breach of copyright.
Inadvertently infringing someone’s copyright could result in legal action. If you are thinking about using creative content that you did not create, you will need to carefully think about the consequences of doing so and seek legal advice. One simple solution is to only use content that you have created, or for which you have obtained a licence.
Influencer marketing has evolved in the wake of social media and technology; companies are increasingly utilising social media to advertise their products and services as it is an effective way of reaching a wide audience.
However, it is important that consumers are made aware that something is an advert or constitute product placement; both influencers and businesses have a responsibility to ensure that they are being transparent when advertising.
Advertising is regulated by the Advertising Standards Authority (ASA) and it has previously banned posts by celebrities or influencers who have failed to disclose that posts were in fact ads. In order to help social media influencers comply the rules, the ASA released a guide titled “An Influencers Guide to making clear that ads are ads”.
If you do utilise social media for advertising purposes, it is important that you ensure you are complying with consumer protection law and abiding by the advertising rules.
3. Breach of confidence
Beware of posting or sharing any sensitive or confidential information online. It is easy to accidentally share private information – you may be excited about a project that you are working on or an up-coming collaboration and let slip about it on social media. You may not think that your post is overtly obvious, but posts can quickly be picked up and shared online and reach a much wider audience than intended; in some circumstances it could lead others to putting two and two together and then the secret is out. The next thing you know is that the project has been called off or a party has walked away from negotiations or a prototype has been accidentally leaked online through a careless post or tweet.
Publishing information online that is confidential in nature without authorisation will likely breach the common law of confidence, which could result in legal action. Potential remedies for breach of confidence include monetary compensation, an injunction to prevent further publication or an order to remove it from the internet.
Think before you post!
4. Breach of privacy
Uploading THE perfect picture to your social media account has never been easier: we can add photos to Instagram, Facebook, snapchat etc straight from our phones. Then we wait for the inevitable ‘likes’ and ‘shares’.
BUT, what many of us fail to think about is the fact that photos often contain the image of others. Taking a photograph of an individual where there is a reasonable expectation of privacy will likely be a breach of their privacy. It is important to think about where you are and the circumstances in which a photo is taken. Photographs taken in a public place may still be considered private if they were taken without consent on a private occasion.
If you intend to publish a picture of an individual, it would be worth asking that individual for permission to avoid any future complications. Additionally, if the photo can be construed as being defamatory in some way then this could leave you open to civil proceedings (this is discussed further below).
On a side note, if you are an individual posting online, it is important to always check your account privacy settings.
5. Data protection
Following on from the issue of privacy, you will also need to consider the extent to which data protection applies to the photographs. Photos are governed by the GDPR if they are capable of identifying living individuals.
Although we will not go into the topic in this post, it is worth noting that some parties using social media need to be alert to the fact that they may be acting as data controllers for the purposes of data protection legislation.
Social media can a great way to share news, information or opinions with others. Generally, such statements are expressed and then quickly forgotten, but it is equally easy for a post or tweet to be shared and copied, reaching a far wider audience than originally intended. This can have serious consequences when the post is inaccurate and vicious in character. A post that that injures the reputation of another is potentially libellous, which is a civil offence. Additionally, the speed and ease with which content is spread online means that any retraction or apology is unlikely to reach the same audience, so the damage caused by such posts is amplified.
So, in short, whether you are an individual or a business, you should always think before you post!
Briffa is a boutique intellectual property law firm based in the Business Design Centre in Islington. We specialise in all aspects of contentious and non-contentious intellectual property law and practice, and we help our clients by helping them to identify, protect, commercialise and enforce their valuable intellectual property assets. Feel free to drop us an email on firstname.lastname@example.org or give us a call on 020 7096 2779 of you would like to book a free consultation.
Written by Charlotte Murphy, Trainee Solicitor
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