Social Media, What’s the worst that can happen?

Written by Alexander Welham | April 30, 2024

Intellectual Property

Ah yes, social media, from the beginnings of MSN messenger and Myspace to Facebook, Instagram, Twitter and everything in between, it is the phenomenon that won’t stop growing and creeping into all our lives and certainly a genie that is never going back into the bottle.

Whilst most of us use social media daily without any issues, there have been and will continue to be examples of where individuals have gotten into legal trouble from their social media posts, and we will briefly go over a few of these below.

So, what are the perils of posting on social media and IP? Well, given that we are intellectual property specialists, where else better to start than Copyright.

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. We often are approached by people who have used an image found on an internet search and before long, they are approached with a cease-and-desist for copyright infringement.

Photos, will almost always be protected by copyright as artistic works, meaning that permission is required before you reproduce the image. Without such permission, can result in legal action. If you are thinking about using creative content that you did not create, you will need to carefully think about where it came from and seek legal advice if you are unsure. Alternatively, the simple solution is to only use content that you have created, or for which you have obtained a licence, or which is in the public domain.

Advertising the bane of our lives, and something that has exploded and continues to grow on social media, particularly as more and more influencers seek to exploit the followings they have garnered for commercial gain. However, it is important that influencers are making sure that consumers are aware that something they are posting is an advert or constitutes product placement, this includes businesses. Both 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, influencers and businesses who have failed to disclose that posts were in fact adverts.

Ever was this becoming a growing problem that the ASA released a guide to help social media influencers comply with the rules, 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 ASA rules.

Breach of confidence / Breach of privacy / Data Protection, whilst these all sound similar, they are in fact different things so very quickly:

Breach of confidence, is to do with sharing any information that you have been told in confidence, i.e. with an expectation that you will keep it private. This can be something personal told to you by an individual or commercial in relation to a business.

Beware of posting any sensitive or confidential information online. It is easy to accidentally share something you may be excited about, a project or an up-coming collaboration, and before you know it the cat is out the bag, even if you thought your post was not overtly obvious, posts can go viral unintentionally, leading others to put two and two together, which could risk or jeopardise the project from proceeding at all.

Publishing information online that is confidential in nature without authorisation could lead to a legal case for breach of confidence, which may lead monetary compensation, an injunction to prevent further publication or an order to remove it from the internet.

Breach of privacy, is solely about individuals and can include images as well as statements, whereas a Data Breach, is all about personal identifiable information (PII) i.e. can an individual be identified using the information you are posting.

The two often go hand in hand, but not always, for example, if you make post a photo whilst at a private event where you have been asked not to, this would be a breach of privacy but not a data breach.

Likewise, if you post an intimate picture of someone, without their permission, even without identifying their name or showing their face, this would be a breach of privacy (as well as a serious criminal offence), but not a data breach.

However, if you post names, or other information which makes it possible for the individual to be identified then you are also in the realm of PII and UK GDPR.

Simply put, if someone has told you a secret, keep it a secret. If you intend to publish a picture of an individual, it would be worth asking that individual for permission to avoid any future complications, regardless of the nature of the photo.

Everyone should be checking their account privacy settings to ensure they are suitable for the manner in which you are using your social media account.

The last thing we will consider here is Defamation. 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 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.

In short, whether you are an individual or a business, you should always think before you post!

If you’re concerned that you have posted something that may cause a social media and IP problem, or that someone else has posted something about you, don’t hesitate to reach out to us. Briffa is always on hand to help. We can be reached at info@briffa.com or on 0207 096 2779.

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