Social Media SCCI Prezi

Social Media & The Law Social Media & The Law What is Social Media? Social Media in 2012 Advertising Defining Social Media Legal Controls Privacy Concerns Consent Minors EU 2012 Data Protection Regulations Facebook - Regulation & Privacy Cookies Employment Law & Social Media Touchscreen devices London 2012 - First Social Media Olympics Social Media in Context Email is 20 years old now Social media has been popular for less than 5 years 25 Million UK users engaged 78% of total UK online population is engaged in social media "We considered that the Nike reference was not prominent and could be missed, consumers would not have already been aware of Nike's "£makeitcount" campaign and that not all Twitter users would be aware of the footballers' and their teams' sponsorship deal with Nike. "We considered there was nothing obvious in the tweets to indicate they were Nike marketing communications. In the absence of such an indication, for example £ad, we considered the tweets were not obviously identifiable as Nike marketing communications and therefore concluded they breached the code." Celebrities often paid to blog or tweet about certain products Advertising Standards Rules say you can't promote a product if the consumer doesn't know they are being advertised to – Criminal Sanctions if not followed! When EU Data Protection Regulations were adopted in 1995, Mark Zuckerberg was 11... 1% of people had internet access People didn't have email addresses on Biz Cards Most Firms didn't have websites Most internet connections were still dial – up Mobile phones were analogue Mobile phones were only used to make calls.... Legal Controls in Context Data Protection Act 1998 EU Data Protection Directive 1995 Definition A Social Networking Service (“SNS”) is Web – based service allowing individuals to Construct a public / semi public profile in a bounded system Articulate a list of other users to whom they are connected View and traverse their list of connections and those made by others in system Facebook, LinkedIn, Bebo, Twitter, Foursquare, Privacy & Risks of Abuse European Network and Information Security Agency (ENISA) Report 2007 Private attributes accessed by 3rd parties Operators could use data Users can't delete data permanently Targeted “phising attacks” across accounts Reveal a users location and schedule Privacy Concerns and Risks of Abuse UK Information Commissioner's Office (ICO) Guidance on SNS Reveal only certain details Avoid using passwords that can be guessed Use separate email Don't provide details of “real – life” location Data Protection Pre – Condition for fair data processing is one of the following: 1.Individual Consent 2.Necessary to perform contract with 3.Necessary to comply with legal obligation 4.Necessary for legitimate interests Who is a Child? England and Wales – U18 Scotland U16 UN – U18 US – prohibits data collected on U13s UK ICO - prohibits data collected on U12s Usage by Children SNS awareness in Children generally high 49% 8 – 17 year olds have a Profile 37 % of parents thought their child had a profile 15% of parents questioned had a profile 23% of parents with U11s allow their child to go online unsupervised In EU, 77% of 13 – 16 yr olds use SNS Risks Adult material Focused commercial content Contact risks (youngster to youngster can be inappropriate) Conduct Risks – Photos, bullying (inc teachers..) “Trolling” Retention of User Data User Data often retained for longer than necessary Not possible to close user account on certain SNS “Right to be forgotten” proposed in EU Data Protection Regulations How effective can this be in practice? EG Press, Health, Crime, Credit References SNS – Data passed through to other users/ Facebook response to the proposed EU Regulations Transparency – Understandable and usable privacy policy Control – you can control and edit by post – the new “Timeline” even has an “only me” setting. Can close and delete account Accountability – To users and regulators (Irish DPC – audited in 2011) Facebook Response Freedom of expression – can it be right to be able to delete anything written about you? Don't want system so over – regulated that it makes online experience more complex and less enjoyable Could stifle the creativity of FB App developers 10 Legal Risks on Twitter The test: If a tweet lowers a person's standing "in the estimation of right-thinking members of society" it will breach the law of libel. This may occur where a tweet causes a person to be exposed to "hatred, ridicule, or contempt", encourages exclusion of that person from society or imputes a lack of professional skill or efficiency. 10. Defamation 9. Harrassment The test: Tweets which the "reasonable person" would conclude cause alarm or distress may amount to harassment The Protection from Harrassment Act 1997 provides that "if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment", it is harassment. Two or more tweets would be necessary for a claim of harassment to be made, as it involves a 'course of conduct'. Harassing tweets could result in a claim for damages for anxiety or financial loss, fines or imprisonment for up to six months. 8. Malicious Tweets Tweets made within the intention of damaging another's business, goods or services through false statements, or which are reckless with the truth as to another's business, goods or services will offend the law against malicious falsehood. A maliciously false tweet could result in a claim for damages for loss and for further compensation for causing distress and "hurt feelings". The test: False tweets with the intent to injure another's commercial interests, or recklessness as to the truth, will amount to malicious falsehood 7. Menacing Tweets The test: If a tweet could create fear or apprehension in the minds of anyone who may reasonably be expected to see it the tweet could be considered a menace and an offence under the Communications Act A tweet that is grossly offensive, or of an indecent, obscene or menacing character, will offend the Communications Act 2003. The crown court considered Paul Chambers' tweet "... I am blowing the airport sky high" to be menacing, however the high court overturned its decision. A tweet that is indecent, obscene or menacing in character could result in a fine or a prison sentence of up to six months. 6. Deceptive & Misrepresentative Tweets The test: Is the tweet deceptive in nature or likely to deceive? A tweet containing a false statement that induces another person to act on it may offend laws against deceit and the making of misrepresentations. A duty may also arise for a professional or other skilled person not to make careless tweets. Misleading commercial communications may offend either the Consumer Protection from Unfair Trading Regulations 2008, the Business Protection from Misleading Marketing Regulations 2008 and industry based advertising rules. Untrue tweets in a commercial context can result in damages claims and prison sentences of up to two years. 5. Impersonating Tweets Test: Misleading or an untrue representation as to a person's identity on twitter could amount to fraud The Fraud Act 2006 protects against fraudulent activities. An impersonator who opens a Twitter account could be exposed to a claim for fraud if the person who has been impersonated suffers loss or damage as a result of the impersonation. A claim for fraud can result in criminal charges with a penalty of up to 10 years imprisonment and fines. 4. Threatening Tweets The test: Generally, an intention to cause harm or intimidation may offend either criminal or civil wrong laws. A tweet could amount to an assault if the person to whom it was directed has a genuine belief that physical harm is imminent. Criminal sanctions would apply in these cases. A tweet could also amount to intimidation if the tweeter makes a threat to engage in unlawful conduct (for example, violence, destroying property or in some circumstances breaching contractual obligations), which coerces another person into doing something for which they suffer loss or damage. The tweet must however be more than "idle abuse" to offend the law of intimidation. An intimidating tweet could result in a claim for compensation for loss or damages suffered. 3. Tweets revealing personal or confidential information Test: Tweets revealing personal details about another person without their consent may breach data protection laws. There is a risk that data protection laws may be breached if consent is not obtained before revealing another person's personal information. The penalty for breaching data protection laws vary across Europe. In the UK, a breach of data protection laws may result in fines and criminal convictions. Particularly in the employer-employee context, a person may be bound to keep information of another confidential. A tweet breaching any such obligation could result in a claim for damages or an account of profits for any income made as resulting from the exposed information. 2. Copied Tweets The test: A tweet which reproduces the work of another without consent will offend copyright law if that work gives evidence of another's creative choices in arranging words, images or sounds. A tweet could offend copyright law if it reproduces even part of an isolated sentence from a copyright work. ECJ - there must be an assessment of whether or not an author has exercised creative choices in the form of intellectual effort in arranging words, images or sounds. Claims for damages for loss suffered and criminal charges with prison sentences of up to two years can result from a tweet that infringes copyright law. 1. Branded Tweets and Hashtags The test: Does the use of a hashtag create a likelihood of association or confusion with the products or services of a trade mark owner? Hashtags, marked with the # symbol, are used in order to alert users to relevant conversations taking place on Twitter. There is a risk, however, that combining a hashtag with the trade mark of another person could result in trade mark infringement. Trade mark law generally protects the trade mark owner against use of its trade mark without permission in a way that may create a likelihood of confusion or association with other similar products or services. Use of hashtags in these circumstances potentially could result in a damages claim. Consumers & Privacy Do consumers actually care about privacy? Most consumers aren't aware of user – targeted adverts based on user history and location 80% of people are concerned about data stored online 44% of users don't like having their financial data available online “Informed Consent” is a fallacy – who actually reads T&Cs before ticking the box? Cookies & Tracking Cookies & Flash Cookies Leads to adverts on websites tailored to what you have recently looked at 98% Websites have Flash (yet few state this) Impossible to remove (& are recreated!) Massive Privacy Issue EU Position EU Privacy & Electronic Communications (EC Directive) Regulations 2011 User must have given consent for Cookies to be installed Came into force 26th May 2011 1 year grace period, hence will be in force and all sites must be compliant as of 26th May 2012 Companies WILL be prosecuted if no action taken by this date Cookies – What should you do? Understand how your site uses Cookies Reflected in Privacy Policy? Train your IT & Marketing department New version of Adobe Flash 10.3 allows for browser history to be deleted Check contracts with web – designers and include appropriate liability ICO Website follows correct approach www.ico.gov.uk Issues for Businesses in using Social Media Employees using SNS to bully or harass others Employer liable if no reasonable steps taken to prevent this – Have a clear policy in place Whitham v Club 24 Ltd Ms Whitham posted negative comments about her colleagues on her Facebook account after a difficult day at work, including "I think I work in a nursery and I do not mean working with plants". Tribunal Decision – Unfair Dismissal Preece v J D Wetherspoon Bar Staff dismissed for gross misconduct after she made rude comments about customers on her Facebookaccount. "Sandra and Brian barred ha ha ha!" "Hope her (Sandra) hip breaks” Tribunal Upheld dismissal LinkedIn – Who owns the contacts? Depends on the circumstances in which contacts created If in course of employment, contacts belong to employer If activity outside employment led to contact, status of employee may mean contact still belongs to employer Therefore have a clear SNS policy with guidance for employees and provide training Google Wave, Box.Net Collaborative working for multiple users on a single document “Smoking Gun” Legal Issue - US issues - Patriot Act Telecommunications (Lawful Business Practice) (Interception of Communications) Regs 2000 - Right of employer to monitor communications Law Practices - Consider very carefully before using Cloud "BYOD" Susceptible to hacking Have a policy in place Ensure Encryption in place If difficult to police, then ban! Updating of Accounts..... www.DigitallawUK.com peter.w@taylorbracewell.co.uk @DigitalLawUK ++ 44 (0) 114 272 1884 uk.linkedin.com/in/peterwrightlawyer Consent Little option but to consent in order to use SNS Often complex and difficult to follow Fallacy of “Informed Consent” online Privacy Settings Facebook faced criticism of old system 20 settings and 170 options New: 1 page, 15 settings Criticisms – Apps that share data Needs to be as simple as possible for user Opt – in vs Opt – out – practical? But.....benefits Education, Learning, Research Participation Social benefit (all peers are online, could isolate) Creativity Identity & Social Connection Stifle benefit is using tools that will be means of connection in future Developments “The first UK Child Internet Safety strategy” ISPs, reviewed against UKCISS Www.dcsf.gov.uk “Zip it, Block it, Flag it” Part of NC from age 5 “Safer Internet Day” 7.2.2012, now in 3rd year "Want" & "Collect"