Internet | Legal challenges in your social media blindspot

By Paul Jacobson
The social web has a playful feel to it. Users are encouraged to share their photos, home movies, thoughts, experiences, locations and more with their friends and family. We build up followings on Twitter and “friend” schoolmates, family members, colleagues and, well, friends on Facebook. Facebook users spend hours developing and managing virtual farms and taking care of each other’s virtual fish tanks. It can be a lot of fun, but there is a serious side too.

Businesses have been exploring the social web as a platform for their marketing initiatives for some time. As a platform, it has its quirks. For one thing, it is inextricably tied to its users – your customers – who talk back and can quickly gather like-minded people to form communities of interest on the go. Those communities of interest can, in turn, have a profound impact on a brand, a campaign or the popularity of a video about a kitten and a ball of wool. The social web is a perfect medium for personal expression and it frequently magnifies the word-of-mouth process that marketers crave (and fear) to almost unprecedented levels. The digital holy grail is a viral campaign that takes the seed of a campaign and propels it into the virtual stratosphere.

What no marketer wants, though, is a legal quagmire, especially not when it has to do with the social web where all the fun and excitement are supposed to be. Unfortunately, not nearly enough marketers and businesspeople are paying attention to the myriad legal potholes and speed bumps in their race to social notoriety, fame and fortune. These legal issues are real, and they can be pretty scary the more you explore their complexities and possible ramifications – but explore them we must.

One of the most common issues marketers and web users encounter is copyright, primarily in the context of what can be done with content (images, video, audio, text and so on) found online. A common misperception is that if this content is available online, then it must be available for whatever purpose the user has in mind. For the most part, this is simply not true. Content found online is generally protected by copyright and, in strict terms, caring isn’t sharing. Simply, content can’t be copied, shared, re-used, manipulated, re-published or sold without the content owner’s permission, which usually takes the form of a content license. Content licenses are often found in website terms of use or in dedicated content licensing frameworks like Creative Commons licenses. Using content without permission can lead to litigation to stop marketing campaigns, royalty payments or even criminal sanctions. As our society comes to depend more and more on intellectual property and creative works, protecting copyright online becomes increasingly important.

Privacy is fast becoming one of the biggest areas of concern both online and offline. A considerable amount of attention has been focused on how social networks deal with personal information, with Facebook becoming a case study in both how not to handle personal information and how to backtrack and pay more attention to its users’ rights. Social web users tend not to take privacy online too seriously or, when they do consider the impact of their disclosures, often don’t appreciate the potential impact on their privacy generally. When people talk about privacy, they often think “secrecy”, but that is only part of the picture. Privacy, as in secrecy, is fast becoming a quaint notion. Aggregated services and search engines make it pretty easy to thread disparate pieces of personal information into more coherent personal profiles, to the point where engaging with the social web is a slippery slope for privacy as secrecy. In that context, privacy – as in control over your personal information – becomes more important than ever and this is where much of the controversy is at the moment. Users have a right to determine how much of their personal information is gathered and what can be done with it. To exercise that right effectively, users need to become more aware of what they give permission for in privacy policies and should make considered and informed decisions about what degree of disclosure and use they are comfortable with.

Similarly, businesses are going to find their privacy policies and practices subject to intense scrutiny going forward. In addition to these general challenges, there are a number of scary questions lurking on the sidelines. One of these is how online publicity will undermine offline privacy and what institutions like banks are going to do to address the security gaps that online publicity on the social web will create.

There are even more challenges facing businesses on the social web and they are unavoidable. The social web isn’t going to become less social or go away. Our business and social activities are increasingly conducted online. Other challenges include reputational harm due to engagement (or failure to engage) in social networks and a new generation of unlawful competition complaints focused on social media usage. The social web has introduced new challenges and new spins on old challenges and none of them can be ignored without varying degrees of risk. Some traditional solutions will fit but, as the social web evolves, we will find that new legal solutions must be developed to reduce exposure to risk online. The question is, are you looking in your blind spot or waiting for the crash?

This article is published under the Creative Commons Attribution license.