Safefood Social Media Conference – 16th September, 2010

Staying Legal

Andrea Martin, Consultant Solicitor

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Internet is the new frontier … the new Wild West

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Legal uncertainties and considerations• Who can avail of intermediary service provider defences under E Commerce

Regulations/E Commerce Directive in respect of – Defamation– Breach of copyright/Trade mark infringement– Breach of privacy/data protection legislation

• To moderate or not to moderate?– Does moderation = publication?– Is there a distinction between selection for publication and de-selection after

publication?

• Does media liability/public liability insurance cover publication on-line/UGC?

• Will third party usage Terms and Conditions avoid liability for defamation/ breach of ©/trade mark rights?

• Are employers responsible for an employee’s social media activity?

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USING SOCIAL MEDIA TO GET YOUR MESSAGE ACROSS

Target audience

reach and

promotional Legal risks

benefits

• BE INFORMED

• TAKE LEGAL ADVICE WHERE REQUIRED

• IMPLEMENT PRUDENT RISK MANAGEMENT STRATEGIES

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Relevant areas of the law

• Copyright law

• Defamation law

• Data protection and privacy law

• Brand and image protection law

• Freedom of Information legislation

• Consumer protection law

• Employment law

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COPYRIGHT

© - exclusive right to copy, make available to public and adapt; consent required.

• Re-use and re-packaging of © material without consent

= breach of copyright

• Providing link to third party material ≠ breach of copyright

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DEFAMATION

• Publication of “...a statement that tends to injure a person’s reputation in the eyes of reasonable members of society...”

• Graphic © Oak Tree Press, 2010; illustrator Ken Lee

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BLOGS, POSTS AND USER-GENERATED CONTENT (UGC) - DEFAMATION

• Blogs and posts can be defamatory – tracing bloggers and those responsible for postings can often be impossible. Liability of website/social media page holder for posting?

• Irish based business/corporate body – can be traced; can be sued for damages.

• E mails, web-postings, Facebook messages, tweets all = publications, defamation law applies

• Re-posting material from other websites = publication, defamation law applies

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LIABILITY FOR DEFAMATORY PUBLICATION

• Publisher is liable

• ‘hosting’ defence for ‘intermediary service providers’

• E Commerce Directive (2000/31/EU) and E Commerce

Regulations (SI 68/2003 – www.irishstatutebook.ie )

• Innocent publication defence – s.27, Defamation Act, 2009?

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HOSTING DEFENCE – INTERMEDIARY SERVICE PROVIDERS

• Who is an intermediary service provider/information society service provider?

• Provided ‘for remuneration’ – in the course of trade,

profession or business

• At the ‘request of the recipient’ – implications for

competitions requesting entries on-line from users?

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HOSTING DEFENCE – INTERMEDIARY SERVICE PROVIDERS

• Intermediary service provider

• No actual knowledge of wrongdoing online

• Not aware of facts or circumstances of wrongdoing online

• Take down on being notified

• To moderate or not to moderate– Moderate – select for publication – no hosting

defence– Moderate occasionally – de-select for publication –

hosting defence?– Don’t moderate – hosting defence?

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COMPLAINT MADE AGAINST YOUR SOCIAL MEDIA PAGE OR WEBSITE

• Assess validity of claim

• If valid complaint, print out/keep screen shot of offending item and keep on file

• Take down

• Disable access by that user (de-friend?)

• Moderation?

Make informed decision – on becoming aware of offending posting (defamation, breach of copyright, offensive posting), take it down. Consider disabling access for that user.

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COMPLAINT BY YOU AGAINST ANOTHER WEBSITE OR SOCIAL MEDIA PAGE

• Print out or make screen shot of offending item

• Carry out a “who is” search - e.g. www.networksolutions.com

• Notify in writing/by e mail – keep copy

• You Tube, Facebook, Twitter – self regulating policies – complete complaint notification as per policy on site

• No action – contact solicitor

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U.S. BASED WEBSITES AND SOCIAL MEDIA NETWORKS

• No take down obligations re defamatory publications – s.230

Communications Decency Act

• Notification and take down procedures under Digital Millenium Copyright

Act, 1998

• Enforcement of court orders/pursuit of litigation – costly

• Reliance on self-regulating policies of social media sites in most cases

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DATA PROTECTION AND PRIVACY

• Personal information collected from users on-line (e.g. form filling, competition entries) = ‘personal data’

• Data Protection legislation applies - Are you a data controller/processor?

• Privacy statement required – including for use of cookies

• www.dataprotection.ie

• Unauthorised use of personal photographs/image on line – breach of privacy?

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8 rules of data protection

1. Fairness in obtaining and processing data

2. For specific and lawful purposes only

3. Disclosure for specified purposes only

4. Safe keeping

5. Keep accurate, complete and up to date

6. Information must be relevant and not excessive

7. Retain no longer than necessary for specified purpose

8. Provide copy to subject on request

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BRAND/IMAGE PROTECTION LAW

• Use of trademarks/logos without consent

• Online reviews of services provided by your organisation

• ‘Parasite postings’ that denigrate brand/organisational reputation – monitoring essential

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Freedom of Information legislation• Disclosure of records held by prescribed public body – www.oic.ie

• ‘record’ includes any form or thing in which information is held or stored manually, mechanically or electronically…(see s.2, FoI Act, 1997 – www.irishstatutebook.ie)

• Exemptions from disclosure – information submitted in confidence, scientific research, commercially sensitive information – exemption may be challenged by requester -Section 29 consultation

• Closed network or forum – no guarantee against disclosure

• Be aware of potential liability to disclosure under FoI

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Terms and conditions of use on website or social media page

Where UGC permitted on website *, terms and conditions

should include:– clear statement of requirement that no defamatory material or

material in breach of third party rights be posted– clear statement that no offensive or obscene material be

posted– clear statement that content not moderated OR occasionally

moderated only – clear statement of notification and take down policy– indemnity by user for breach of T&Cs? – disclaimer of liability by website/webpage host – explicit acceptance of T&C by user?

*Decide in consultation with lawyer/insurance advisor

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Consumer Protection

Ireland/EU

• Commercial communications/advertisements must be• Lawful• Honest• Decent• Truthful

• Commercial communications can be made on line

• Consumer Protection Act, 2007

• www.nca.ie

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EMPLOYMENT LAW

• Employer liability

• Employer policies

• Employee liability

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EMPLOYER CONSIDERATIONS

• Potential legal liability for social media postings…

– to organisation/company – to clients– to third parties– to employees – disciplinary issues

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EMPLOYEE CONSIDERATIONS

• Potential liability for social media posting

– Personal liability for offending postings on social media

– Disciplinary issues

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4Cs of employer internal social media policies

• Consider

• Create

• Communicate

• Comply

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~ CONSIDER ~

• What do we seek to achieve for company/organisation? For our clients?

• Who will have access to social media on behalf of the company?

• Will employees be permitted use social media in the workplace or not?

• Will employees be barred or encouraged to use social media in the workplace?

• Will employer be entitled to monitor employee’s ‘work-related’ social media accounts?

• What editorial guidelines will apply for posting to social media – company and work/personal?

• What copy clearance procedures will apply?

• Training programmes for use of social media?

• Who will be responsible for monitoring/updating?

• Reporting procedure for take down notifications or brand on-line image/reputational issues?

• Will company/organisation be covered by media liability/public liability insurance for any social media liability?

• Industrial relations/collective bargaining considerations – privacy, disciplinary procedures?

LIST NOT EXHAUSTIVE – WHAT IS RELEVANT TO YOUR ORGANISATION’S ACTIVITIES?

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~ CREATE ~

• Articulate policy

• Take marketing/PR/legal/insurance advice as required

• Write it down

• http://socialmediagovernance.com/policies.php - samples available

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~ COMMUNICATE ~

• Communicate to all employees – vertical and horizontal

• Strategy for active buy-in – signature/acknowledgment?

• Communicate updates of policy in similar manner

• In-house training/education programmes

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~ COMPLY ~

• Encourage and monitor compliance with policies

• Spot checking (e.g. copy clearance procedures)

• Record keeping (e.g. notice of take down requests, steps taken to address image/reputational issues/screen-shots/screen grabs of offending material before take down occurs)

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4Cs provide evidence of……

• Taking reasonable care in relation to publication

• Communicating disciplinary issues to employees

• Employee’s actions being unauthorised by the company (vicarious liability scenario)

Will assist in defence of any claim for damages for defamation, breach of copyright/privacy/

confidentiality/trade mark rights, vicarious liability claims and unfair dismissals claims

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Staying legal on-line….

Be creative

Be aware of the law!