Social media – how to run it to avoid legal problems

A social media presence seems to be a given in every industry. Nowadays, it is difficult to conduct any promotional activities without them. However, it is worth considering how to publish posts and reports in order not to violate the law.

Almost all companies and agencies operating in the MICE industry have their own social media profiles, which they maintain on a fairly regular basis. There are informational posts, but also very often reports from various events, photos (including people’s photos), and often even labels – not only of companies and places, but also of individuals. However, the amount of work and commitment involved in such activities often raises more questions than answers in terms of their legality. It should also be remembered that each social networking site has its own specifics, different rules and a different approach to legal issues.

Copyright law

Copyright regulations do not keep up with the development of technology and the tools offered by the internet, especially social networking sites. The development of the latter has caused a lot of confusion in the area of copyright protection due to the possibility to quickly and easily disseminate creators’ works by making photos, pictures or music available. A protected work is any object, any “product”. Therefore, virtually anything on the Internet can be protected by copyright. Photo comments, Twitter posts, thumbnails, blog entries, emoticons, web video player interfaces, icons or buttons on web pages, etc.

Importantly, the mere fact that a content is posted on social media does not automatically mean that a licence to use it has been granted to other recipients. Therefore, it is impossible to simply copy content previously made available online by a third party and claim that to be its author. Nor can it be freely “pasted” into a social media profile that one maintains, even if the requirement to identify the author is met. It is also forbidden to use it for strictly commercial and promotional purposes, related to running your own business, without the author’s consent. Therefore, it is important to be cautious even when forwarding such content to friends or making things in its likeness. The wide range of possibilities to share content results in a multiplied likelihood of copyright infringement, provided that the published content is legally protected.

The safety and protection of intellectual property in social media is characterised by a multi-faceted arena. On the one hand, it is governed by laws, contracts and regulations of social networks, and on the other hand by the individual attitude and behaviour of users. The regulations, as a rule, are a set of provisions that also include a presumption of legality of ownership of all rights to the content that will be posted by the user. This means that a user who registers on a given social networking site should in principle only post content that does not infringe the rights of third parties. It is therefore advisable to be aware of the rules applicable to the use of a given site and to know what rules apply to the publication of materials within its framework.

The safest solution would obviously be to share self-created content. The second option is to ask the author for permission to publish a given photo, video or other work on the site – this can even be done through a given platform. Furthermore, if a user wants to add variety to their post, but does not have their own photos, they can always use materials offered under a Creative Commons license or content that is in the so-called public domain. It is important to remember that Creative Commons licenses do not apply to images!

Content may also be made available under the institution of permitted use, for example on the basis of the right to quote or for educational purposes. It should be emphasised here that these are exceptional circumstances, which always have to meet statutory requirements, e.g. that permitted use concerns only those works which have been made available to the public, e.g. on the Internet with the author’s consent, or in the case of the right of quotation, that the source or author of the content has been correctly indicated.

Image

We are probably all familiar with the rule that dissemination of an image requires the permission of the person depicted in it. However, also in this respect we often encounter some erroneous practices (commonly taken for granted) concerning marketing activities undertaken in social media. We are talking, for example, about a wrong interpretation of the provision that states that permission is not required to disseminate an image of a well-known person if the image was made in connection with the performance of public functions, in particular political, social or professional functions. Indeed, this is an exception to the rule, but it is allowed only in the case of using the image for informational purposes. What is important, both the doctrine and the judicature point out, that the dissemination of such an image should be connected to the protection of a specific, justified social interest, which cannot be identified only with the need to satisfy the curiosity of a certain group of people or with the need to arouse sensation and, as a result, gain more “clickability” or “readership” of a given title or social networking profile. For example, using the image of a well-known person to advertise one’s brand or event will not, therefore, benefit from the aforementioned exception.

It is also social media practice to use photos shared or uploaded by users. Before using such photos, however, it is important to remember to: (i) obtain permission to disseminate the image and that (ii) this permission is as precise as possible. It should contain provisions ensuring that the person granting such consent is fully aware not only of the form of presentation of his/her image, but also of the place and time of publication, juxtaposition with other images and the accompanying commentary. This is important, as the more detailed the consent, the lower the risk of being accused of unlawful dissemination of the image. In particular, we should avoid using the so-called “blank consent”, which usually contains permission to use the image without any clear time limits or restrictions on the scope of use. Such practice is often simply legally ineffective. It should also be noted that, as a rule, the re-use of the image by another entity requires a second permission.

Summarising the most important aspects of activity in social media we should remember that:

• when sharing links, check the credibility of the source they come from, as we are responsible for the content we publish online;
• always check if a given work has been shared on social media by its author
• when sharing an excerpt from a work based on the citation right, you should attach a short comment (your own opinion, polemic, analysis, etc.) to it;
• when sharing content on the basis of the right of quotation, it is important to comply with the conditions specified in the Act on Copyright and Related Rights;
• sharing images of public figures is not unconditional!

Unawareness of social media rules, licences and terms of use can have serious consequences, not only legal but also reputational. When publishing content from other sources on social media, it is worth reading the rules beforehand to avoid liability and know what rights you have. Finally, remember to properly mark sponsored posts – paid promotion of products or services without a clear indication that it is sponsored content violates the ban on surreptitious advertising and may constitute an unfair market practice and in some cases an act of unfair competition.

Article appeared in Think Mice magazine – https://www.thinkmice.pl/news/prawo/3507-social-media-jak-je-prowadzic-zeby-nie-miec-problemow-z-prawem

Author: Hanna Marcinkiewicz, attorney at law, LSW Leśnodorski, Ślusarek and Partners

Hanna specialises in intellectual property law and civil law. She has extensive experience in conducting court cases – she represents both large business entities and natural persons. She successfully conducts cases regarding infringements of personal rights and intellectual property rights. Regardless of her intensive work, she engages in socially important initiatives and causes – pro bono. Her professional portfolio includes services for entities from a broadly defined creative industry, in particular advertising agencies, production houses and media houses. As part of her specialisation she also provides ongoing legal services to film and television producers. Her areas of interest also include fashion law, consumer protection law and combating unfair competition. She is associated with the activities of the Bar Association – currently she is a member of the Commission on Ethics and Bar Secrecy.