Transcript IWSA Health and Safety Seminar Charleston, SC April 19, 2005
Social Media, Legally Speaking
Legal Considerations for Protecting Your Brand in the Digital Age
Presented by Arent Fox LLP Washington, DC | New York, NY | Los Angeles, CA
August 13, 2009
Overview
(1) What is “Social Media?” (2) Two Sides of Social Media a.
Third party use and reference to your brand or product or use of your content online b.
Your company harnessing the power of social media (3) User Generated Content (UGC) (4) Defenses a.
Digital Millennium Copyright Act b.
Communications Decency Act (5) Conclusion
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Part 1: What is Social Media?
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What is Social Media?
DEFINITION:
online content created by people using highly accessible and scalable publishing technologies, which transforms people from content readers into publishers Instantaneous, typically inexpensive to produce, and may be anonymous
EXAMPLES:
Microblogs (Twitter) Social Networking (Facebook) Collaboration Site (Wikipedia) Blogs Forums Social News (Digg) Multimedia (YouTube, Flickr) Reviews and Opinions (eopinions.com)
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Part 2: Third Party Use of Social Media
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Twitter: What is it and How is it Used?
www.twitter.com
What is it?
Part of social media that enables people to keep in touch and for information networks
Individuals
Status Information exchange – Ex: Providing links to auto parts for sale on eBay
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: What is it?
http://www.twitter.com
INSERT TWITTER HOMEPAGE
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Twitter: What is it and How is it Used?
Businesses
Customer service Information about new products deals
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Twitter: Risks/Legal Issues
Providing links to potentially infringing/counterfeit products
Impersonation and fake pages
Accounts registered for monetary gain
Disparaging/critical comments about company, brand, or product Social Media, Legally Speaking
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Twitter: Risks/Legal Issues
Twitter Liability
No direct liability because protected from being sued for content created and uploaded by their users under Section 230 of the Communications Decency Act of 1996 Potential liability for trademark infringement, but this theory has not yet been tested
Individual User
May be held liable for trademark infringement, libel and the like, but theories have not yet been tested First Amendment protection Issue with identifying user
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Twitter: Strategies
Monitor Twitter
Links to infringing products, fake accounts, impersonations Try to address issue directly Contact Twitter to have the account or content removed
Set up company account on Twitter
Provide link to Twitter on company web site so that users may confirm it is an official account American Airlines defensive registration strategy
Future: Verified Accounts
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Facebook: What is it?
www.facebook.com
What is it?
Part of social media that enables people to network with people they know or meet new people, and to join others who share interest in the same groups and causes Online networking for individuals and business
Status, videos, photographs, information Social Media, Legally Speaking
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Facebook: Risks/Legal Issues
Impersonation/fake pages
False information E-mails
Use of trademarks as usernames (New Development) Display of trademarks or copyright protected content Facebook claims no direct liability because protected from being sued for content created and uploaded by their users under Section 230 of the Communications Decency Act of 1996 Facebook users less likely to be anonymous than Twitter users Social Media, Legally Speaking
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Facebook: Strategies
Impersonation/fake pages
Monitor (need to have account) Request removal under Terms of Use
Infringing usernames
File online complaint
Display of trademarks/copyright protected material
Monitor (need to have an account) File online complaint (copyright or other IP) Business reasons to not take action
Set up company Facebook page and include link on company web site Social Media, Legally Speaking
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Wikipedia: What is it?
www.wikipedia.org
Community-edited online encyclopedia
Updates and edits are tracked by IP address
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Wikipedia: What is it?
Becoming more “accepted” source of information
Examples: – UK Trademark Office in
Formula One
case – Third Circuit in US, Wikipedia article referenced to define a term
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Wikipedia: Risks/Legal Issues
No “law” regarding Wikipedia
May be freely edited
Unflattering information Disparaging information Changes are tracked, if company edits own page risk bad of publicity – No known legal ramifications from edits – Bad publicity example: Church of Scientology
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Wikipedia: Strategies
Monitor Pages
Add positive information to top of the page Do not make negative changes or edits, question information for discussion If disparaging/libelous information, contact administrators of Wikipedia
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Blogs: What are they?
DEFINITION:
a type of website, usually maintained by an individual, with regular entries of commentary, descriptions of events, or other material such as graphics or video
User-owned domain name or online service (ex: blogspot)
Affects who to contact and how infringing content may be removed
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Blogs: Risks/Legal Issues
Infringing content posted
Links to counterfeit products Trademarks Copyright-protected written content Videos Fair Use considerations
Critical comments about the company
Fair Use considerations
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Blogs: Strategies
Send cease and desist letter
Contact host to remove infringing content
Be careful if owner of website displays a content takedown procedure.
Best practice to send cease and desist letter
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Part 3: Company Use of Social Media
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Legal Considerations
Are the activities covered under a Terms of Use?
Third party Terms of Use or Company Terms of Use
Is information covered under a Privacy Policy?
Third party Privacy Policy or Company Privacy Policy
Are you using third party content?
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Where are the Protections?
Twitter and Facebook
Governed by Twitter/Facebook Terms of Use/Privacy Policy
Blogs/Forums/Wiki Sites
Company’s responsibility
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Blogs: Basics and Legal Considerations
Legal Considerations
Importance of Terms of Use – Protecting your content – Address how your company deals with third party content – Ownership of user-generated content Importance of Privacy Policy – Collecting additional information from users – Use of information
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Forums: Basics and Legal Considerations
What are forums and how are they used?
Discussion area for third parties, users Example: Dell
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Forums: Basics and Legal Considerations
Legal Considerations
Updating Terms of Use and Privacy Policy regarding collection and use of information and content Moderating and removal of content
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Wiki Site: Basics and Legal Considerations
Information resource for company
Legal considerations
No “law” relating to Wiki Sites Terms of Use and Privacy Policy Moderating, expectations of users
Additional considerations
Provide users with guidelines for editing
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Part 3: User Generated Content
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What is it about User Generated Content?
Turns your fans into content creators
Creates brand loyalty in a community environment
Inexpensive way to develop advertisements and viral marketing
Allows fans to collaborate ideas and enthusiasm about your products Social Media, Legally Speaking
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Protecting Yourself from Liability
Copyright Clearance
Different levels of copyright and different rights – photographer or graphic artist Is there any music incorporated in the video?
Derivative rights Is it a parody or otherwise a play on third party content?
Limiting liability
Provide elements Warranty and Indemnity from individual (but this won’t be worth much) Pay license fee to utilize content (Corbis) Consider parody or First Amendment arguments
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Protecting Yourself from Liability
Trademark Clearance
Are there third party trademarks incorporated in the video?
Consider what is in the background - signs, product labels, any trade dress rights?
Attempted to limit the use of your trademark Prohibit inappropriate use of third party trademarks or making defamatory statements
Limiting Liability
Warranty and Indemnity from individual (but this won’t be worth much) Remove or blur the infringing content Ask the consumer to re-shoot the film without the content Consider parody or First Amendment arguments
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But What Are the Risks?
Losing control of your brand or IP
Tarnishment of your brand
Disparagement by competitors
Potential liability for users who incorporate third party content
Compliance with gaming and lottery laws Social Media, Legally Speaking
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Protecting Yourself from Liability
Publicity Rights
Celebrity or recognizable voices?
Image or Persona of famous personality?
Limiting Liability?
Indemnity from individual (but this won’t be worth much) Consider licensing the rights Consider parody or First Amendment arguments
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Woody Allen vs. American Apparel Social Media, Legally Speaking
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Protecting Yourself from Liability
Privacy Rights
Have the individuals in the video consented to their image and data being used for your purposes?
Limiting Liability?
Release from all individuals in the video Warranty/indemnity from the creator of the video
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Part 4: Defenses
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Digital Millennium Copyright Act
The Digital Millennium Copyright Act provides a safe harbor for companies that include a “Notice and Take Down” procedure on their sites. The “Notice and Takedown” procedure should state that the web site operator will take down any infringing content once it receives proper notice of such content. With this language, and the proper registration, a company may avoid monetary damages. (Injunctive relief can also be avoided in certain circumstances.) Social Media, Legally Speaking
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Qualifying for the DMCA Safe Harbor To qualify, a company must: 1) 2) 3) Register a “copyright agent” with the U.S. Copyright Office to receive takedown notices Adopt, display and reasonably implement a copyright infringement policy that facilitate the expeditious removal of copyright infringing content. Not interfere with standard technological measures re: copyright protection.
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Proper Notice
A copyright infringement policy must include the name, address, telephone number and email address of your DMCA agent.
The proper form for a notice of claimed infringement should be a written communication that substantially includes the following:
1) A physical or electronic signature of a person authorized to act on behalf of the owner; 2) 3) 4) 5) 6) Identification of the copyrighted work claimed to have been infringed; Identification of the material that is claimed to be infringing; Contact information for the complaining party; A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
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Communications Decency Act: Section 239 Immunity
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Communications Decency Act
Regulates harassing, lewd, obscene or otherwise objectionable speech.
Applies to publishers or speakers of the speech.
Does this mean that YOU could be liable for someone else’s negative comments?
Possibly….
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Section 230 Immunity
“Immunity” granted to web sites that are not the “speakers” of the content
Section 230 of the CDA grants immunity to providers and users of an “interactive computer service.”
Zeran v. AOL case - CDA immunity granted even though there was notice. Social Media, Legally Speaking
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Creation of the Content
Note, immunity has been granted even when the internet provider may have been involved in the creation of the content.
Carafano v. Metrosplash.com, Inc. (2003)
Carafano sued the owner of Matchmaker.com for a false personal advertisement posted on the site.
Carafano claimed that the site should not be entitled to immunity because it posted questions that led to the false information.
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Creation of the Content
Carafano v. Metrosplash.com, Inc.
(con’t)
Court granted immunity and explained that the user selected the content and the response to the questions.
Also, the answers that were provided did not have more than a “tenuous relationship” to the actual questions.
Thus, immunity granted.
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Roommates.com Decision
Fair Housing Council of San Fernando
Valley v. Roommates.com LLC (2008)
FHC of San Fernando Valley brought suit against Roommates.com claiming that the questionnaire on the site was discriminatory Roommates.com claimed immunity under Section 230.
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Roommates.com Decision
Roommates involvement in the creation of the questionnaire disqualified it from immunity. The court noted that the fact that Roommates.com turned the answers to the questions into user profiles made it a developer of the info.
Distinguished the case from Carafano by stating that Matchmaker.com had nothing to do with a user stealing Carafano’s identity, while Roommates.com developed the questions that led to discrimination.
Found that Section 230 immunity attached to the “Additional Comments” box.
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Part 4: Conclusion
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Conclusion
Whether a willing participant or not, most major companies and/or brands can be found on social media sites.
Content may be company or user generated Social media is not a fad but a shift in power to the consumer Social media is multi-generational Consumers now care more about what their friends opinions are rather than what a company has to say Social media has leveled the playing field between small and very large companies Social Media, Legally Speaking
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Conclusion
What can you do to protect yourself legally?
Monitor the internet – DAILY – At a minimum use the popular web browsers to search your company name and brands – Search the popular social media sites Have a plan and take actions immediately – Sometimes the best actions are not “take downs” – Designate responsibility within your company for social media Investigate setting up company accounts – Register your company name and brands before someone else does If you promote User Generated Content, protect your rights Ensure company Terms of Use and Privacy Policy are up to date and cover activities
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