Old Laws, New Space – Social Only Makes It Easier to Screw Up

Writing today in social is no different than yesterday.  Your statements could be used against you.

Writing today in social is no different than yesterday. Your statements could be used against you.

Some of the most popular postings in social are things that are confrontational or controversial.  The problem with those things is that someone will always be mad and someone will always find themselves at the wrong end of it.  Sometimes this may be easily recovered from with an apology.  Sometimes a brand may need to fire someone.  At the end of the day, saying something on social is no different than off the internet.

So where does your liability, as a brand, come from.  Have you thought about re-publishing someone else’s hyperbolic statements on your twitterfall displayed on your home page or in your fan tent at a local sporting event?  What if their statement rises to the level of defamation?  Ouch.  You definitely need to have some worry in this space.

Now that I said you need to worry, I recognize that what I am talking about are edge cases.  These are the things that will get talked about in the paper with various pundits saying, well everyone says that on the internet.  Or, shouldn’t we all just get a thick skin.  Exercise some reasonable caution and implement reasonable controls in what you do, and you will be ok.

As a brand, republishing someone else’s content is where some of the larger risks in user-generated content comes from.  What liability do you bring upon yourself, and how you control it, may mean the difference between success and incredible legal failure.

What is defamatory? What is Libel?

A large body of U.S. law, like most countries that used to be part of the British Empire, is based in common law, and defamation and libel are no different.  Common law is law that was not created by a government, but has been created over time by various court cases and has evolved slowly.

Libel requires defamation as an element, so let’s talk about that one first.  In order to be defamatory, a statement must be published, false, injurious and unprivileged (Sourcewww.nolo.com).  Published does not necessarily mean in the paper, or on twitter, it can be spoken, as long as a third party heard the statement.

In contrast to publicity law, public officials and celebrities actually have less protection than you, because the U.S. Supreme Court in NY Times v. Sullivan, the Court created a rule that added an “actual malice” element when the speech was about a public figure.  We can talk about publicity law on another day, but relish the fact that as a nonpublic figure you have more protection.

Libel on the other hand, subsumes defamatory into it’s elements.  Under the Restatement (Second) of Torts, libel requires that: the statement was false and defamatory; speaker made an unprivileged publication to a third party; the publisher acted at least negligently in publishing; and in some cases, the complainant must prove special damages.

There is definitely some overlap, but let’s look at social networks and your statements there.  There is definitely a publishing step there.  The rest is pretty standard.  So if you make a libelous statement, you are liable (pardon the tongue-twister).

While truth is always your best defense, there are some limited defenses that you might be able to turn to.  The best ones (for this particular medium) in my mind, are rhetorical hyperbole and opinion.  A decent argument could be made from “in my opinion, such and such is …,” but I think that one is tenuous.  The other one, rhetorical hyperbole – material that no reasonable person could believe – might just work the best for this particular medium.  At least in the U.S.

For those Twitter users in the U.K., the Lord McAlpine case is instructive of what could happen (and while I think those in the U.S. may be a bit more safe, you don’t want to be the first case).  Sally Bercow is still on the hook for £50,000 for “Why is Lord McAlpine trending? *innocent face*.”  The Now Show on BBC Radio did a great parody bit on this case when they suggested a defamation plan added to your mobile plan.  But the net of this case is watch what you are doing.

The interesting thing to point out from the Lord McAlpine case and my recitation of the elements of libel/defamation is that as long as you agree that posting something to your social network is a publication than you are squarely in the crosshairs of law that has been around since before the invention of electricity, much less the Internet.  I am a huge fan of the term meatspace to distinguish online from real life, so in this case there is no difference in meatspace and social media.  If it’s libel, it’s libel.

Brand liability?

Do you re-tweet your users posts, or republish them in any way?  Do you publish a Twitterfall to your homepage, or maybe on an internal screen in your communications department?  Guess what – You are a Publisher!  I have never been a big fan of uncontrolled Twitterfalls to be honest.  I think there is a bit too much that could happen.

When you are providing a pipe to content that you did not create, there are many traps you need to run.  Do you own the content, or do you have a license to it?  Are you taking the content out of the service within which it was originally published?  This segues quite nicely into a discussion of platform terms of use, which I will talk about tomorrow.

For today, let’s just all fall back to what we learned from our parents – if you don’t have something nice to say, don’t say anything at all.  A great lesson from our childhood that I think would serve you well in social media.

As a brand, assume that in your user-generated content portals and views that you will object to at least one thing every day that is posted.  Now figure out what to do with that and you will be better prepared.

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