Social networking sites continue to grow in terms of users, and the figures are truly staggering. There are more than 175 million registered Twitter users, sending out 95 million Tweets per day. Though still relatively new, Tumblr is growing fast, by roughly 25,000 new users per day and is estimated to have reached over two billion page views per day. Meanwhile, Facebook counts over 640 million users, up from January 2010, when the site had 350 million active users. Half of these log in daily and Facebook has seen a 40% increase in daily usage over the past 12 months. While user numbers across the different platforms continue to expand, when it comes to the legal ramifications of social media, users may still be uncertain and unsure of their responsibilities.
For businesses blogs and micro-blogs, social media platforms offer the unique opportunity for companies to reach and engage with customers in way that’s never been possible in the past. However, this comes with a level of uncertainty in terms of corporate online responsibilities, and this can be cause for concern. Of course, there is a difference between the legal and the ethical quandaries, but often the two go hand in hand, such as in uploading content.
Moreover, while all businesses will naturally be careful to preserve their goodwill, in addition to this, the luxury fashion industry faces a unique set of challenges when it comes to preserving brand equity on and off-line. Not only is it important to ensure that content does not breach copyright, but it is also imperative that it does not in any way sully the brands’ identity or tarnish the brands’ positioning.
While the rule of thumb is that what is illegal off-line is equally illegal on-line, this is easier said than done. Often, the remoteness of the web, coupled with the ease of the click of a mouse, means that users might act without fully considering the consequences of their online actions.
It is paramount for brand owners to invest time and resources in ensuring their team is proficient with the legal, ethical and corporate responsibility ramifications of their social media and online strategy.
So what are the main areas of concern?
Copyright
Copyright is probably one of the biggest concerns, particularly given the content-heavy nature of social media. Copyright is defined as an exclusive set of rights bestowed on creators which includes the exclusive right to use, copy, distribute and adapt the work. While copyright arises automatically, in some jurisdictions it is possible to register as well, which may act as a further deterrent to infringement.
Particularly in the realm of online, with the advent of social media, the position of copyright holders has been hotly debated. In a sense, the point of social media is not only the distribution of content but the redistribution of content, which of course greatly increases the chances of materials being published online without the express authorization of the copyright owner.If we look to Facebook, on average there are more than seven billion pieces of content shared on the site weekly.
It is easy to see how the sheer rate at which copyright content is uploaded online is certainly much faster than the time it takes for it to be monitored – indeed, many copyright violations go unnoticed because there are just so many of them happening every hour.
To some extent, the fair use exception (which allows copyrighted materials to be reproduced if for the purpose of commentary, criticism, news reporting, research, teaching, etc.) and the Creative Commons licenses (where companies or individuals can obtain different licenses which by and large grant permission to reproduce copyrighted work) certainly contribute to a more content-sharing friendly online environment, while still respecting the copyright owners’ rights.
Nonetheless, there is no doubt that the general rule of “post only content you yourself have created” still holds true, and indeed, some social media platforms, such as Instagram, YouTube and Vimeo, make it part of their express terms that users may only upload content which they themselves own, through being creator or co-creator.
Trademarks
Trademarks are distinctive signs, words or logos used by an organization to distinguish their products or services. Depending on the circumstances, featuring a trademark or logo on a social media platform may constitute use and thus infringement – though likelihood of confusion, dilution, passing off, or depreciation of goodwill.
In terms of fashion brands’ social media use, while it may be rare that one brand infringes the trademark of another, there is the issue of registering the trademark brand name. Indeed, for companies today, it is normal to wish not only to own the domain name relative to their trademarked brand name, but also the corresponding Facebook page, Twitter handle or Vimeo channel.
While some social media platforms allow multiple accounts under the same name (for instance, Facebook) others such as Twitter do not, leading to instances where late-comer brands have found themselves having to adopt rather unexpected Twitter handles. Certainly, whether or not they are actively using these for the time being, it is certainly considerably safer in terms of brand reputation management for brands to ensure that nobody else is, either.
Libel
When it comes to social media and the law, to say that what you say or post on social media platforms will have consequences in real life is no where more evident than when it comes to libel. After all, as Tweeters like to put it, you must think before you Tweet.
Libel is defined as defamation by words, pictures or other gestures and was developed to protect individuals or organizations from unwarranted, wrongful or false attacks on their reputation. When using social media platforms, which act as a quick and immediate corporate bulletin board, it is fundamental that marketing teams understand the limits of what can and cannot be said or done.
Conversely, as part of their brand reputation management, brands should want to stay on top of what is being said about them online and while operating within a spirit of openness and transparency, take action in the rare event of any libellous or defamatory statement against their brand.
Data protection
Privacy is another important issue online, particularly because it impacts such a deeply personal currency which, whether advertently or not, can be breached easily.
In the fight for privacy, perhaps to a certain extent our own adoption of social media platforms is to blame – after all, how many of us connect to friends on Facebook, update our status on Twitter or check in to locations with FourSquare? Social media platforms have become part of the way in which we interact with one another, so inevitably this has made it easier for others to track down information about us online.
As it pertains to companies’ online practices, the issue with data protection is mostly centred on how platforms collect and use information about clients – both in terms of taking protections to sufficiently safeguard sensitive information and regarding what personal client information it may or may not track for marketing or statistical purposes.
Given the central role that analytics play in measuring the effectiveness of brands’ social media activities, companies may wish to familiarize themselves better with privacy and data protection legislation in their jurisdiction. For instance, Google Analytics, which works by gathering detailed information about user interaction with a particular website by taking note of the user full IP address, was hotly contested by privacy advocates in Germany for being in breach of privacy laws. While it seems Google Analytics got off the hook, the case only serves to underline the tension between online statistical trackability and privacy advocates.
Of course, within the borderless and seemingly limitless online space, jurisdiction is key. Broadly speaking, if a website can be accessed from a particular country, then anything uploaded to or downloaded from that website is subject to the country’s laws, even if the website is hosted, run and owned elsewhere. However, the varying standards applied internationally to areas such as copyright, trademark, libel and data protection mean that there are quite different levels of protection available.
This has resulted in this area of the law – like many others – being affected by a sort of litigation tourism, whereby claimants may be in a position to pick and choose a jurisdiction on the basis of which one will look most favorably on their claim. This is the case with libel, since the bar for proving libel in the UK is set much lower than in the United States.
In the end, it is up to individual companies to step up and take ownership of their online responsibilities, by investing time and resources in ensuring that their marketing team is proficient with the legal, ethical and corporate ramifications of their social media and online strategy.
Photo Credits: Keith Goldstein
