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Wordcamp Guide to Social Media Law

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Peter Wright

on 29 May 2014

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Transcript of Wordcamp Guide to Social Media Law



Peter Wright, Solicitor
@DigitalLawUK
Managing Director, DigitalLawUK
Chair, Law Society Technology & Law Reference Group
Download Presentation from www.DigitalLawUK.com

Social Media Damage
Security
Social Media providing
Evidence in
Criminal Investigation

Online
Slander / Defamation

Police &
Terror Threats

Social Media for Revenge
&
Takedown of content

Inappropriate
Content
Regulation & Ownership
of
Social Media

Harassment
Pupils
&
Teachers

Minors

Paid - for
tweets & Blogs

Malicious Posts

Deceptive &
Misrepresentative
Statements
Impersonation
Data Protection

Retweets
&
Copied Posts
Employment Cases
"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!
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
Defamation

The test: If a Post 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.
Online 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.
Malicious Posts

Posts 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 Post could result in a claim for damages for loss and for further compensation for causing distress and "hurt feelings".

The test: False Posts with the intent to injure another's commercial interests, or recklessness as to the truth, will amount to malicious falsehood
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.
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.
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.
Threatening Posts

The test: Generally, an intention to cause harm or intimidation may offend either criminal or civil wrong laws.

A Post 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 Post could also amount to intimidation if the Poster 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 Post 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.
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.
Copied Posts

The test: A Post 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 Post or even 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 Post that infringes copyright law.

CAUTION - "Press This" App

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.
Celebs and Sports stars advised to use #spon, #ad or £ in commercial tweets
ASA cleared Rooney as it was an "obviously idenifiable marketing communication"
Contrast between this tweet and his personal tweets
"We considered the reference to Nike Football was prominent and clearly linked the tweet with the Nike brand
Wayne's World

"Got sons of anorchy season 5 today. Can't wait to watch it"

"Congrats to gareth bale on winning both awards tonight. I think. van persie or suarez should of won it though"

"What channel is grammys on"
Copyright automatically applies to any of your creative work. Your website, design, content and posts is all your own Copyright.

This should not be confused with a Trademark or
Patent, which has to be obtained and Registered
What we will look at:
Online & Social Media Damage
Security & Terror issues online
Harassment
Deceptive & Misrepresentative Statements
Impersonation
Regulation & Ownership of Accounts
Account Security
Revealing too much - Employment issues
Data Protection
Cookies
Malicious Posts
Online Slander / Defamation
Copyright
Paid Blogging & Tweeting
Advertising Standards

Enquiry Forms: British Pregnancy Advice Service

Attacker used an automated tool to identify website vulnerabilities in an attempt to gain unauthorised access to the BPAS website Content Management System.

The BPAS website enabled users to request a call back for advice. To access the call back service, users had to use a web form to submit their contact details to BPAS. The website then retained a copy of the call back details of approximately 9,900 individuals unnecessarily and this information was available to the attacker once he gained access to
the CMS.

The attacker publicly expressed his intention to publish the names of the individuals whose call back details were held on the BPAS website.


£200,000.00 Fine


Guide to
Social Media Law
Full transcript