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Social networks and the Law

Just as the “greyhairs” are warming to email, the younger generation is abandoning it. Yes, rumour has it that email is dead and that our children only communicate through Facebook.  However, website-socialization is itself under threat and it may not be long before i-phone and other mobile apps sound the death knell for Facebook and the already receding Myspace.

I don’t want to show my age but I can still remember the days when children went round to each other’s houses, bought records in the High Street and played conkers  in the playground. Nowadays they communicate through Facebook, download music through i-tunes and play games on Miniclip, Gamesloth and Friv and on apps such as the ubiquitous Angry Birds.

The move to social media is not merely a cultural phenomenon, it also has profound legal consequences.

Twitter – Copyright and Defamation

Not only is re-tweeting frowned on from a marketing perspective but it also entails the risk of copyright infringement. Original tweets attract literary copyright whether the expression of an individual viewpoint or just a glorified self-indulgent report of a supposed celebrity’s daily schedule.

140 characters are also more than sufficient to run the gauntlet of defamation.  Addicted tweeters need to keep their audience interested and growing. Knocking copy whether pejorative or merely salacious is still one of the best ways to achieve this.  Think before you tweet!

Indeed any interactive forum on any website poses risks. Wherever people have the opportunity to pass comment about others exposes the website owner to the risk of libel proceedings. However, assuming the site is un-moderated, swift take-down of the allegedly defamatory comments is usually the remedy. Such reaction enables the owner to avail itself of the innocent dissemination defence under Section 1 of the Defamation Act 1996.

It is key for website owners to have appropriate terms and conditions on their websites governing access to and use of such forums including an acceptable use policy.

Facebook – Privacy and Copyright

The term “friends” no longer connotes a person you have necessarily met – the rush to build up a critical mass of friends on social networks such as Facebook often ignores such niceties.  My children maintain that they choose which of their details are seen by which of their “friends”.  I am sceptical.  Facebook needs to monetize those in its thrall and the provision of potential customer-targeting information to advertisers does not sit easily alongside the concept of privacy.

Apparently, Facebook is now a key source of evidence in many divorce trials. Statements made as to whereabouts and activities by a party are often undermined by the publication of communications with friends or photos by the person or someone in his or her network.

The copyright infringement issues associated with the likes of likes of Napster and YouTube are well rehearsed. However, with the choice by Warner Bros of Facebook as an online rental platform for “The Dark Knight,” the 2008 Batman film, the scope for file sharing and copyright infringement on social networks becomes ever greater.

Virtual Worlds – Second Life –Trademarks

Most people will understand the issues behind recent cases against eBay by brand owners such as LVMH regarding alleged trademark infringements relating to counterfeit goods being sold via its website.

However, one step further removed from the old-fashioned human interaction referred to above is the weird galaxy of Virtual Worlds; the most prominent being Second Life. Here you can forget your anxieties about excess weight, receding hairlines and blotchy complexions and appear as your idealized alter ego.   Indeed so popular is this virtual reality that participants spend real money on decking out their avatars with designer clothes and other fripperies. This bizarre conflation of the real and the virtual raises real Intellectual Property issues. What, for example, if your avatar is wearing a Juicy Couture top or a Rolex watch without the permission of the trademark owners?

The bad news is that the world seems to be an ever more complicated place and the displacement of the physical by the digital and virtual exacerbates that. The good news, of course , is that this all makes for considerably more legal work for the likes of this author!

Simon Halberstam is a partner specialising in social media and ecommerce law in the corporate department at SIMONS MUIRHEAD & BURTON LLP.  For further information, please contact him on 00 44 207 814 1258 or via email at [email protected].