Social Media Lawsuits: Your Posts and Pics Can Screw You

February 5th, 2010 |

About

Jeff Louis is a strategic media planner, brand project manager, blogger, and aspiring writer. He's intrigued by innovation overcoming adversity, survival of the fittest brand, history, reading, and similar fun stuff. He writes for sites and is the Public Relations and Advertising writer for the Chicago Examiner.

Without a doubt, social media is the biggest thing to hit the advertising industry since television, the huge difference between the two mediums being that TV was a one-way conversation, advertisers hawking their wares. Social media, on the other hand, has brought two words into the relationship not previously uttered – conversation and content. Social media has also given the consumer a voice – a powerful voice – and a means to use that voice. The conventional advertiser/consumer relationship is dead, never to be resurrected.

This is not to say that traditional advertising is dead. Rather, television, radio, magazines, and newspapers have transformed their businesses to take advantage of the synergies available between the various platforms. But, you already know all of this…

However, this new space has also opened up deep legal issues in the areas of privacy, intellectual property, identity theft, defamation, and self-incrimination. While privacy has long been the online community’s main watch word, identity theft is surpassing privacy due to the fact that it stems from a users lack of privacy online. Most online users are aware of the trade-offs brought about by online shopping, social media sites, and the costs associated with free content; it’s pay to play, and your privacy is the currency of choice. Buy a book from Amazon? Name, address, telephone number, email address, and a record of your purchases are all stored. Facebook account? Whatever you write in your profile will be utilized by marketers to target you with advertising; it’s the cost of admission. So, if you list one of your interests as “playing guitar,” you’ll see ads for local and national guitar retailers, music vendors, recording studios, and the like. Additionally, they know your demographic, geographic, and psychographic information, and probably the web-surfing habits associated with your IP address.

People file suit against companies all the time for breaching privacy. Identity theft, while hard to nail down, is also seeing its fair share of time in front of a judge.

Justice Scales

However,  defamation, intellectual property (IP)  rights (and theft), and self-incrimination are all new areas where there is little or no set precedent, meaning that you can end up in court for something as simple as posting a photo on your Facebook account or blog without gaining approval or purchasing the rights to use the content. Thus far, most bloggers have been both careful and relatively safe as long as the use is non-commercial. That may soon change, though.

Intellectual Property:

Whether a solitary blogger, freelance social media marketer, or a small business, intellectual property use or theft can snag even the most wary of users. While some companies guard their IP by adding a watermark or making the image/content difficult to download, there are easy methods to get around these security measures. Adobe’s Photoshop, in the hands of a professional, can transform any photo back to “normal”. As long as there is a Print Screen command, content that’s been copyrighted is easy to “borrow” as well.

In the same vein but on the opposite extreme, as a blogger, writer, or website owner, you want to be able to protect those items that are considered your intellectual property. Likewise, many corporations are beginning to employ user-created media on their sites to heighten brand image or to increase sales.

Skittles (It’s the Rainbow) launched a social media campaign in March 2009 that used a Java panel over  Twitter search, and every tweet that contained the word “Skittle” or “Skittles” posted on the site in real-time. The Skittles’ site employed user-created content on their site that was created on the social media “biggies” YouTube, Facebook, Flickr, and Twitter. Unfortunately for Mars, Skittles’ parent company, the idea backfired when an anti-Skittles effort encouraged users to post idiotic comments about the candy. Other user-based sites encouraged web users to post negative, and often NSFW, content.

Other companies have faced similar problems by posting users’ photos on their corporate sites, gleaned from photo-sharing sites, social media accounts, and other methods. These have also backfired.

Online users have the mistaken notion that anything posted on a social site, online forum, or blog site means that it’s part of the public domain. Actually, the opposite is true. It’s not in the public domain unless stated that the image or content can be used under certain terms of the Creative Commons, a non-profit that sets standards for online sharing and use of IP. The photo-sharing site Flickr uses the following chart to aid users on the free and fair use of images and video:

Attribution iconAttribution means: You let others copy, distribute, display, and perform your copyrighted work – and derivative works based upon it – but only if they give you credit.

Noncommercial iconNoncommercial means: You let others copy, distribute, display, and perform your work – and derivative works based upon it – but for noncommercial purposes only.

No Derivative Works iconNo Derivative Works means: You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike iconShare Alike means: You allow others to distribute derivative works only under a license identical to the license that governs your work.

Defamation:

FindLaw.com, an online legal site/community, provided insight into the Communications Decency Act, Section 230. The act protects websites from liability that stems from publication of information provided by another content carrier or website. For instance, if I used the AP Blog to gather information which turned out to be untrue and libelous, I, technically, would be protected. If I posted defamatory or illegal content on a social media site like MySpace, MySpace would technically be protected as well. Even though this is the case, social media sites expend a lot of resources to ensure that their sites do not contain such information. YouTube, for instance, uses an algorithm to constantly search and delete pornographic material or nudity. The program doesn’t catch everything, but users are also encouraged to mark content as inappropriate. If I, on the other hand, originated libelous content that was then picked up by other sources, the responsibility and damages would be my problem.

Thus far, defamation has had a rocky history in court. However, a well-known case in California made its way to the California Supreme Court after several dismissals and reversals in lower courts. It was ultimately decided that a woman who re-posted an e-mail written by another party regarding the practices of two doctors was protected under the shield law in section 230 of the Communications Decency Act. This was the first instance of a single person, not an internet provider, being protected under the shield law. Statements from two of the Justices ruling on the California case showed how treacherous online publishing can be as they rendered the court’s decision:

The court also acknowledged that blanket immunity for the redistribution of defamatory statements on the Internet has “disturbing implications.” Although Plaintiffs are free under Section 230 to sue the originator of a defamatory Internet publication, “any further expansion of liability must await Congressional action.”
In a concurring opinion, Justice Carlos Moreno also suggested that immunity would not extend to an online publisher or distributor who conspires with an original content provider to defame. However, in this case, there was provided no proof of a conspiracy to defame.

It is important to note that online writers and bloggers are not protected under the 1st Amendment rights extended to protect journalists working for newspapers and magazines.

Self Incrimination:

As more and more social media users are discovering, what you write on a social media site or blog can and will be used against you, especially in cases of infidelity and divorce.

According to lawyers, once your comment leaves your keyboard, it becomes part of an electronic record that can be accessed by police. In fact, in many cases, no subpoena is necessary. Police officers in Bensalem, N.J. tracked down and arrested a man who shot and critically injured another man at a party. In the early morning hours following the 3 a.m. shooting on January 23rd, police began tracking down witnesses to the shooting by using Facebook. The party’s organizers used the site to post information about the party. Those that responded were soon found by police who, after some investigation, determined who had done the shooting. The party was being held to celebrate the return of a Marine from Iraq, a birthday party, and the opening of a new business. Both friends and strangers showed up. The police narrowed the suspect list with witness questioning and by releasing videotapes taken at the party to the news to help identify the suspect. By Friday of last week, the SWAT team was in place, and the shooter on his way to prison.

In another case, a 17-year old New York teen was given a harsher sentence for negligent homicide due to Facebook:

Seventeen year old Ashley Sullivan had been driving with her boyfriend in Tonawanda when she crashed into a brick pillar at 56 mph in a golf course. Her boyfriend did not survive the accident, and in November of 2009, Sullivan pleaded guilty to criminally negligent homicide and driving while intoxicated. That didn’t stop Sullivan from posting a photo a month later to her Facebook page with the caption of “Drunk in Florida.” It just so happens that she had just gone to Florida on a trip, and the judge in her case took notice. Judge Matthew J. Murphy III denied Sullivan youthful offender status, noting that she hasn’t “earned it,” and sentenced her to six months in jail with five years probation. “I’m troubled by your conduct since the crash, and that’s the reason for the jail sentence,” Judge Murphy III told her.

During the social media age it is necessary that are aware of the law, and how it pertains to social media. The things you post on social networks and blogs can potentially follow you for the rest of your life.

What happens on social media sites never stays on social media sites.

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2
Jeff Louis
  • http://www.jrconsumer.com/ RV

    that would be difficult to do actually because internet are used by millions…

  • http://www.jrconsumer.com/ RV

    that would be difficult to do actually because internet are used by millions…