“Social Media and the Law,” the topic of July’s SMC Dallas program, exposed the gap between common social media practices and what’s legal. We discovered that even avid social media practitioners aren’t necessarily aware of social media law or even social media site terms.
To illustrate that point, Peter A. Vogel, panelist from Gardere, questioned the audience about Twitter’s Terms Of Service. Only about 5% of attendees claimed to have read them. On the other hand, perhaps the issue is that the law isn’t keeping pace with technology. “The internet is changing very quickly, but the law doesn’t change that quickly,” says Vogel. The law moves very slowly and reflects people’s opinions and society.
Michael A. McCabe addressed misconceptions related to labor/employer aspects of social media law.
- Parts of the National Labor Relations Act apply to all companies, not just those with union representation.
- Two or more employees are permitted to talk about workplace conditions on social media. So a company can’t fire someone just for complaining about work on-line.
- The best thing that companies can do regarding social media behavior is to have a clear policy in place for employees.
The audience was loaded with questions on intellectual property and copyright requirements. Since many social media practitioners build audiences using curated content, copyright issues are a hot button. The discussion once again highlighted the social practices/legal precedents gap. “Whether we like it or not, there are millions of infringements going on this very minute, probably even in this theatre,” stated Vogel.
Q: Is it acceptable to re-post someone’s photos as long as you give them credit?
A: No, the “fair use” concept applies to news organizations, not companies. Brands need written permission to use someone else’s content.
Q: Is it safe for brands to use Pinterest? If brands are re-pinning from a site with a “Pin It” button, doesn’t that imply the original website has given permission to use?
A: No, according to Danica L. Mathes. You also need to ensure that the website you re-posted from actually owns the content. That may not be the case with Pinterest, which has a low percentage of original content.
Q: What about fan-generated social media content? Can brands use it for promotional purposes?
A: You need permission from the fan. And the fan needs to be old enough to give consent. If it involves pictures of children, parental consent is required. So you can’t pull tweets off Twitter and use them to promote your brand. In fact, the Twitter TOS disallows use of Twitter content for advertising purposes.
Q: Doesn’t fan content that mentions your brand via #hash tag imply consent?
A: No, a hash tag can’t be copyrighted so it’s hard to know for sure that consent was given. If a fan @mentioned your brand, there’s a better case for re-posting their content.
Q: What about live events and fan content?
A: A sign at a live event explaining that all posts can be used is helpful. If someone uses the event #hash tag at a live event, it probably implies consent.
The following tweet sums up the social media law topic quite succinctly:
Original content, approved images — the only way to go on social media. Seems pretty straightforward. #SMCDallas
And no, I didn’t get permission to use Laura Desmeth’s tweet since she gave implied consent with the live event hash tag. But what about this next tweet…is this considered advertising, in which case consent is required? What do you think, social media enthusiasts?
Thank you & good night #SMCDallas. Never thought Social Media & the Law would be so fascinating and entertaining.
To learn more, check out these resources:
- Best Legal Practices for Social Media, written by Danica L. Mathes is available on her blog, Practical IP.
- Peter S. Vogel’s blog on Internet, Information Technology, and e-Discovery.
- Copyright free photos, or check license status by performing a Bing image search.
SMC Dallas would like to thank Carrie Corbin, AT&T, for her superb job moderating this lively bunch.
And many thanks to McAlister’s Deli for serving as our food sponsor with their great deli sandwiches, chips and cookies. Don’t forget Free Tea Day July 25th!
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