social media and your staff by brian miller and jean boyle, solicitors at stone king llp
TRANSCRIPT
Social Media and Your Staff
Brian Miller and Jean BoyleStone King LLP
Who is responsible for
policing the Internet?
Key players
Platform providers
Users ISPs
Liability
• Platforms/intermediaries– Disclaim all liability– Based in California/Californian law
• Free speech• cf. English law
– defence of honest opinion
– Only risk of liability is if they monitor and moderate all content
Liability
• Users– Committing acts of infringement, BUT– Can be difficult to pin down
• Anonynous IDs• IP address/identity unknown• Difficulty/expense of obtaining
– US and UK law defences
Relevant laws
• Defamation/malicious falsehood• Privacy/confidence• Harassment• Copyright, trade marks, design rights
Relevant laws
• Defamation– Publication of statements likely to cause
serious harm to reputation• Eg. criticisms of a person's actions or character
– Grounds• First published within previous twelve months• Lowers the subject in the estimation of right-
thinking members of society
Relevant laws
Malicious Falsehood• similar but separate cause of action to defamation• content published online with an improper motive• subject has suffered financial loss
Unlike defamation, a claimant must show suffered financial loss, including
loss of trade or other damage that can be quantified financially
Relevant lawsHarassment• course of conduct that causes them
distress or alarm • Civil but potentially criminal too• Course of conduct
Must be two or more times in seriesPerson knows or ought to know conduct
amounts to harassment (reasonable person)
• Breach of order can result in committal
Relevant laws
Intellectual property infringementExamples:– User copied substantial part of copyright work– Content incorporates identical or ‘confusingly
similar’ trade mark(1) Copyright Infringementmust be original work ‘substantial part’ must be copied (qualitative v.
quantitive test)Fair dealing defence of commentary, parody
etc
Relevant laws
Registered trade mark infringement Must use be in course of trade, without
permission Not an infringement:
– Honest use in a descriptive manner– Use not “in course of trade”Examples– Using a TM to divert attention online– Making unfair comparisons
Relevant lawsPassing OffUnauthorised use online of
unregistered brand:• Brand has an established
reputation• Goodwill built up in UK• Misrepresentation page X
belongs to Y; OR• authorised or endorsed by Y
Stops third parties benefitting from another’s work
Some rights reserved by National Crime Agency
Relevant laws
Breach of confidence
Internet a forum for publishing sensitive informationPublishing confidential information a breach of the law of
confidence BUT Horse has usually bolted
Remedies:-• injunction• order for removal• damages
Criminal ProsecutionNumber of additional remedies under criminal law:
• Protection from Harassment Act 1997• Malicious Communications Act 1988• Communications Act 2003• Computer Misuse Act 1990
Relevant laws
Actions and responses
Factors in deciding how to proceed• Cost• Impact on life/business• Likely effect• Time to conclusion• Relative strength of case• Actual damage, including
Likelihood of content being seen
Actions and responsesProblemsLocating infringer• Unrelated or fake usernames• Proxy or anonymous servers
Unravelling:Difficult technicallyExpensiveOften fruitless
Actions and responsesSolution: the Platform Provider or OwnerDefences:• intermediaries' defence for defamation• not the poster of defamatory material• general intermediary defences under the E-Commerce
DirectivePlatform provider/owner’s responsibility to take down
Actions and responses
Take Down Procedures• Account suspension• Take-down of content
US law ‘legal problem’:• S.230(c) of US Communications Decency
Act 1996• ISP not liable if exercise little/no editorial
control
Actions and responsesWordPress.com
• Wordpress.com users can follow the instructions at report a site — support
• Non-users can file an abuse form • US company
Reluctant to remove offensive blogsEven if UK High Court order in place
Actions and responses
Blogger
• Google terms of service• content boundaries and guidelines• contact forms for each specific area• US based..
Actions and responsesLinkedIn• professional community guidelines• Dos and Don'ts in their user agreement• “objectionable content such as harassment, abuse, or
unwelcomed communication to other users is not tolerated”– clicking "REPORT" when viewing, or – use the notice of false profile form
• Past experience suggests cooperative and quick to remove clearly abusive and offensive content
Actions and responsesFacebook• Report a Violation mechanism• report button when on objectionable page
Facebook's policy, terms, and Facebook community standards:
actions such as impersonation, bullying and harassment are not tolerated
Actions and responses
Twitter• Twitter rules and terms of servicepolicy against objectionable behaviour Help Centre that deals with cases where
people are engaging inimpersonation, abusive or harassing behaviour
online form can be filled out to report note Trade Marks Policy
Actions and responsesYouTube• Reporting Centre for reporting one off content
that violates – the community guidelines or – terms of service
• Reporting tool• Legal webforms (trade mark and ©
infringement)• Erratic take down procedures
Actions and responses
PR and practical measures
• Risk of proliferation• Respond or keep your peace?• Online responders
Actions and responsesOther Action• Regulatory body complaints
– Advertising Standards Authority• Offences under the Consumer Protection from Unfair
Trading Regulations 2008• Civil litigation
– Legal fees high– Is the poster discoverable?– Does he/she have means to pay?– What about the ISP/site owner?
Actions and responsesOther Action (cont’d)• Criminal prosecution
– offence will only be committed if such action is caught by the existing criminal framework
• Actions in other jurisdictions• Right to be forgotten
– complaint form here
Menu
• Introduction • Damage v benefit• Policies – options and considerations• What happens when it goes wrong - examples• Questions
Damage v Benefit
• Massive growth in the popularity of social media =
opportunities and issues
• Knowledge is power – know your Twitters from your Tumblrs
• Acronyms could be critical in any action against staff
Acronyms
Could be crucial:
ASL - Age, Sex, Location
GAL – Get a Life
LOL – Laughing Out Loud MIRL – Meet in Real Life
PAW – Parents are Watching
NSFW – Not Safe for Work PCM – Please Call Me
WTH – What the Hell
GGN – Gotta go now
GGN – Gotta go now IANAL – I am not a lawyer
Blurring lines
Potential issue
School
Personal lives
Work
Options and considerations
• Prohibition– How realistic?– How common?
• Move to more policy driven approach– Clear understanding of expectation– Training for managers, employees– May be different for different classes of
employees
Policies – what should they say?
• Clear about what expect• Link to IT policy• Relationship with students/parents• Privacy settings• Place of work – profile• Bullying• Comments about working day,
colleagues, school
Examples
• Misconduct – Could lead to dismissal – NCTL
• ET largely supportive of employees• Categories
– Unrelated to work but offensive– Specifically related to work– Bullying
Work related
“I think I work in a nursery and I
don’t mean I work with plants”
“Don’t worry – it takes a lot for the
b*****ds to grind me down”
“This place is beyond a f*****g
joke!” “I would quite
happily hit all the kids in the back of
the head with a pic axe”
Not work related
“Some ppl are just vile c**ts I wouldn’t piss
on you if you were on fire but would love to rip ur head off and sh** down ur neck
****”
“A&E with me dad useless t***s
popped his hip”
“This week I have mainly been driving to towns the arse end of nowhere .. shut roads and t***s in caravans =
road rage”
Further issues
• Bullying– Public comments about colleagues
• “Liking”• Investigation
– NCTL• How relevant is “sorry”?• Whistleblowing – watch out• Loss of productivity – in lessons• Recruitment – don’t forget to google!
