Social Media Law – Interview with Pete Bott Part 2
You might remember the recent interview I posted with Pete Bott. Pete is a Solicitor in the Music, Media & Entertainment Department at Blacks Solicitors LLP in Leeds[*see update below], and gave us some great insights into where the law stands on particular key areas around copyright and the use of images and videos posted online.
We had such a great response to the interview – thank you to everyone who has been in touch!
It seems that there are also many other questions that people are concerned about, including:
- Their employee social media policy
- The rights or obligations of employers and employees regarding the personal use of Facebook and Twitter
- Personal privacy and social media sharing, following the Leveson enquiry
- Social media policies for international companies
We therefore put some of these additional questions to Pete and he kindly responded with the following answers:
Q: In August, the Employment Tribunal found Carphone Warehouse to be liable for the actions of its staff in respect of a social network update, where an employee alleged harassment by colleagues who had managed to access his Facebook account and post a ‘status update’ on his behalf. The Employment Tribunal found that as these actions had taken place during the course of employment, the employer was liable. Where does the line of responsibility lie for employee social media use, and what do companies need to do to protect themselves from liability for its misuse by employees?
A: The Employment Tribunal expects employers to protect their staff in cyberspace in much the same way as they protect their staff in “the real world”. A responsible employer should therefore have a social media policy in place which they bring to the attention of all staff, and also provide training in respect of social media use.
An employer cannot reasonably be expected to police the social media activity of all employees outside of work hours or even when their employees are using their own devices for social media activity during work hours. However, by reasonable monitoring of employee social media activity and by having a social media policy in place together with appropriate training, an employer is protected with a “reasonable steps” defence in the event of any claim.
Q: What can companies do if they find out that an employee has posted a comment on their personal Facebook wall (in their own time) that is potentially damaging for the company? How far are they allowed to go in restricting employee social media use in order to prevent this happening?
A: The rights and powers of an employer in this situation depend very much on the context e.g. the nature of employment and the seniority of the employee. It may also be relevant to determine whether (in the event of any Facebook wall posting): 1) the employer is identified directly or indirectly; 2) there is a breach of confidentiality or of any express or implied duties under the employee’s contract of employment; and 3) there is a breach of any applicable code of ethics.
Q: Please can you clarify the law with regard to both copyright and usage of images uploaded to social media sites such as Facebook?
A: Unless an image is created in the course of employment or subject to an agreement to the contrary, the author of an image (i.e. the person who took the photograph or created the graphic design work) is the owner of the copyright in the image. This gives rise to various exclusive rights including the right to copy the image, the right to issue copies of the image to the public and the right to communicate the image to the public. As a result, any person who is not the owner of the image will infringe the owner’s exclusive rights if they upload that image to social media sites without first seeking the permission of the owner.
Q: The Leveson enquiry has highlighted the issue of privacy in the gathering and reporting of personal information by the press. If press regulations are toughened as a result, what impact can these restrictions really have on the sharing of information through social media?
A: The tightening of press regulations should not have a big impact on sharing information through social media as such information is shared, for the most part, with consent and intention. The regulatory reform for the press is to protect from information being gathered where there is no consent or knowledge.
Q: There have recently been a couple of cases where people have faced prosecution after sharing personal information about others or posting threatening comments on Twitter. How does the law currently stand on this, in UK, which is said to promote “free speech”? What are people allowed to say and what are they not allowed to say?
A: The government recently issued guidelines on this matter in an attempt to clarify what should be allowed under free speech and what should be prosecuted. The three main circumstances when a case of this nature will be prosecuted are: 1) credible threats of violence; 2) communications which specifically target an individual or individuals; and 3) posts or comments that breach court orders.
Q: The internet is a global phenomenon, yet each country has different set of privacy laws. How do laws between different countries differ, and how is this policed on an international basis?
A: Common basic norms have been established as the foundation for privacy laws throughout the world through such instruments as the European Convention on Human Rights and the United Nations’ International Covenant on Civil and Political Rights. These provide a framework for many of the privacy laws found all over the world. International policing lies in the hands of Interpol and Europol along with the cooperation of independent countries’ national police forces.
Q: Should UK companies that operate internationally be aware of any particular issues with regard to their social media policy and strategy?
A: Companies that operate internationally should consider having a common social media policy that covers all company employees, wherever situated, and that policy should be well communicated to all employees. The positive use of social media should be encouraged by multinational companies as it can be a great tool for promoting the image and brand of the company whilst further interacting with current and potential clients. A clear and well-communicated social media policy, together with appropriate training, allows company employees to utilise social media as an effective tool to benefit the company.
Q: I have wondered a lot of times what is considered stealing and what’s not. The first thing that comes to my mind are photos. Is it okay to search for a photo and place it on your blog, website, Facebook, etc. For example, if I am writing a blog about ROI and I find a random photo that represents ROI, is it okay to use it? Any time I use someone else’s thought I always use quotations and cite the source. Are we meant to do the same with photos? I’ve always been curious about the legalities behind photos. I’ve heard different answers from here and there, but never a concise straight forward one.
A: As explained above, the owner of a photo has various exclusive rights in respect of that photo. Usually, this means that any person who is not the owner cannot copy, distribute or otherwise “communicate” that photo to the public without the prior consent of the owner. The consent of the owner may be conditional on giving an appropriate credit to accompany the photo but a credit in itself is not a substitute for seeking the owner’s consent.
There are various exceptions to the above, notably the existence of “copyright free” photo resources, but it is important to check the terms of any licence to use such photos to ensure that use of the photo will not infringe any person’s rights.
Thank you to Pete and the team at Blacks for sharing their knowledge.
If you want some help with refreshing your social media strategy, just give me a call on 01133 20 21 21.
Pete Bott is currently Music and Media Specialist Solicitor at Swan Turton commercial solicitors in London, UK. But at the time of this interview, Pete was a Solicitor in the Music, Media & Entertainment Department at Blacks Solicitors LLP in Leeds, UK.
Find Pete on Twitter at @PBottMusicLaw.