The astonishing growth of social media has prompted many businesses to claim a place in its platforms. With almost 79% of major businesses owning profiles in Facebook alone, companies are increasingly committed to having a social media aspect in their business models. In fact it is predicted that by 2014, 53% of all retail sales will be determined by the web, as consumers increasingly consult the internet prior to making purchases. These figures highlight the fact that the social media landscape will be here to stay, affecting businesses’ marketing decisions, interactions and conversations.
When your business thinks of social media, you may only think about posts, tweets, reviews and other tactics that will mobilize customers to talk about your products online. You may overlook the fact that the information from the growing social media sites can also be used for litigation and legal cases. And although you know that your social media accounts can be used for and/or against you in a court of law, it is not exactly an aspect you are cautious about.
More than ever, lawyers are now using social media to collect evidence to support a successful case. The law is also slow at coping with technology, especially when the internet is concerned. Thus, you (and your lawyers) should be extra watchful in examining social media aspects where you can be protected by existing laws.
For instance, Tweets and Facebook posts are usually too short of titles and phrases to be subjected to copyright laws. But in Agence France Presse v. Morel, the Southern District of New York ruled that pictures shared through Twitter can still be basis for infringement actions. In this case, the court ruled that a user’s posting of pictures through Twitpic is governed by a clear content license within the Twitter Terms of Service, which does not give any third-party Twitter user an implied license.
Your business must also protect your ownership of your full social media presence through contracts or other approaches. These measures were the focus of US’ District Court for the Southern District of New York case Ardis Health v. Nankivell.
In that case, defendant Ashleigh Nankivell started to manage the social media profiles of the Ardis companies in 2008. She maintained the content and “Access Information” of the companies in the various social media sites during the course of performing her functions. By summer of 2010, Nankivell and Ardis owner and founder Jordan Finger started to develop their own social media website “Whatsinurs”. But in June 2011, their relationship turned sour and Nankivell was fired.
There was no solid contract over Whatsinurs between Ardis and Nankivell. So when the plaintiffs demanded that the defendant surrender the company-issued laptop, provide the social media Access Information, and remove Whatsinurs from her portfolio, the plaintiffs had to seek an arduous preliminary injunction. Along with its differing decisions, the court gave considerable attention to what is expected from parties contracting within the social media domain. These prove that companies are maybe concerned with their continuous access to their social media profiles, but often fall short from guarding such access. They
The issues don’t end there. How social media spreads information about litigations raises concerns. Should the public and reporters be permitted to tweet real-time courtroom proceedings? Can the jury be prohibited from using social media during trials? The roles of social media in legal proceedings are often subjected to judicial discretion in the face of a lack of relevant rules. But with the judiciary not being the active users of social media, can they still be the best arbitrator of cases concerning competing business interests in social media?
In America, Lady Justice is indeed blindfolded – especially around social media. Phones are frequently restricted, and sketch artists (instead of cameramen) are still employed in modern American courtrooms. For the current high-profile multiple murder case against the accused killer of Grammy winner Jennifer Hudson’s family, the judge in the in a criminal court at Cook County, Chicago banned the use mobile devices within the courtroom. No Facebook, no Twitter, no to all. Only “limited and discrete emails will be permitted subject to the Court’s discretion”. The application for press coverage also asked for the media organizations’ and reporters’ professional social networking accounts. To guarantee that the information will be first delivered to a newsroom, the court is clearly trying to enforce editorial control over potential case reports.
English courts are however less restrictive with the use of social media in court. Recently, the Lord Chief Justice of England and Wales published a Practice Guidance on the use of social media in court. The guide says that the public may apply for the use of mobile phones, laptops and similar devices, which should be in mute mode, to broadcast the proceedings. Legal analysts and media representatives can send SMS without first seeking permission from the court, unless they will obstruct fair administration of justice or if the privilege is taken away by the court.
Whether the restrictive American approach or more liberal English approach will be more successful in regulating the flow of information from the courts to social media, we’ll still have to find out.