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!

Brian Miller, PartnerJean Boyle, Senior Associate

brianmiller@stoneking.co.ukjeanboyle@stoneking.co.uk