Why Social Media is No Legal Safe Haven

http://www.freelancewritinggigs.com/2010/12/why-social-media-is-no-legal-safe-haven/

One of the reasons that the Web has become a legal minefield is because it deals with laws and ethics that, prior to its creation, almost no one had any reason to know.

Before the Web, the only reason to understand libel, privacy, copyright, trademark and other areas commonly associated with mass media law was if you were a journalist, a publisher or someone else involved in some form of media. The average person just didn’t have the means to really reach a large audience, not without filtration, making the laws fairly pointless to know.

But now, with the Web, anyone can reach an audience the size of the largest newspaper or TV station, but without any of the understanding of the laws that govern such distribution. That’s a big part of why I write this column here on Freelance Writing Jobs.

But there is yet another problem. The Web often times leads one to have a false sense of privacy. Social networking and social media are supposedly all about one’s friends and personal connections, not the larger world. However, the law, in many areas, doesn’t make a strong distinction between those two things as, in many areas, the difference between lawful and unlawful isn’t based on the number of people a message is sent to.

Here are just a few examples of why social media can still be a legal minefield, even if it feels like a safe haven.

100 or a 1,000,000

In most areas of media law, the law isn’t concerned with how many people received the message, but rather, what the content of the message.

For example, with copyright, burning a copy of a CD and giving it to a friend is a copyright infringement the same as sharing it on a major file sharing network. The only difference is the amount of damages one would likely be able to claim.

The same is true for libel and privacy law. Though the damage done might be greater with a broader audience, especially with libel, all one has to prove is that a 3rd party saw the libelous statement.

In fact, with libel, social media can actually be worse in many ways than publishing on the broader Web as the message is targeted at those the subject knows, possibly causing more direct harm.

In short, as far as the law is concerned, the only thing that changes when you post something on your social networking account versus the broader Web is the amount of damage. But given the high damages often won for even small missteps, that should not provide much comfort.

Privacy? What Privacy?

The one potential benefit to sharing such materials via social media is that it is much less likely the person who would take offense would every find out.

For example, if you share a copyrighted work on your Facebook profile, the odds of the copyright holder finding out are much less than if you posted it on the broader Web. The enclosed nature of Facebook, especially with good privacy settings, offers a shield against search engines and other detection techniques.

However, the idea of privacy on the social web is, in reality, only an illusion. Even if you post something only to your closest friends and even if the security is flawless, nothing can stop the people who receive your message from spreading it farther without your permission.

Sites such as Lamebook specialize in taking semi-private conversations and posting them to the larger Web (though it removes personally identifying information). These conversations are, usually, submitted by friends of the person the site is poking fun at.

Ben Franklin once famously said that, “Three may keep a secret, if two of them are dead” and that truism holds fast on the social Web too. Anything of great interest will leak out and, as the person who put it out first, you would have at least the lion’s share of the responsibility. Though repeating or even linking to libel is a violation in many cases, the original speaker, whether copyright, libel or privacy violations are involved, usually takes the brunt of the burden.

In short, unlike Vegas, what happens in your social network rarely stays there, especially if it is interesting enough to repost. The nature of the Web as a copy machine not only works against you when trying to control who copies your public work, but who copies your private ones as well.

Unfortunately, both can get you in legal trouble.

Bottom Line

There’s a temptation to treat one’s social networking profiles as a kind of digital “home base”, a place to relax, be among friends and let one’s hair down. Unfortunately, we have to remember that social media, both in terms of the law and in terms of your privacy, are still very much a public place.

Any legal missteps that you make on your social networking profiles, no matter how private they may seem or even be set to, can come back to haunt you and often do.

After all, people are semi-regularly fired on the grounds of their Facebook comments and a growing number of people are being sued or evenconvicted criminally for Facebook defamation.

Facebook may provide greater privacy protections but it is by no means a safe place to post unlawful messages. The law doesn’t make much distinction between the number of people who see a message and the privacy that these networks promise are really an illusion.

You can’t stop your friends from sharing that which they “like” so it is best, from both a legal and an ethical standpoint, to treat your social media interactions the same as you would any other activities you do online.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

Comments

  1. Not a bad article, but from a legal perspective, I do not think some of the comments are 100% correct….for writers who read this, if you’re faced with any form of defamation or invasion of privacy, you should seek the advice of an attorney for a clearer understanding of what is required to be proven in your specific case. It is not as “cut and dry” as one might think…

    • The point of the article is that social media is not a legal safe haven for activities such as libel and copyright infringement, I think that’s a safe point. There’s always nuance beyond what you can describe in an article, that much is clear, but I think it’s a fairly safe idea that you should treat the social Web the same as you the larger one.
      Jonathan Bailey´s last blog post ..The Night Before a Copyright Christmas

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