Navigating the legal minefield of social media

By Jessica Stringfield

Still an untamed beast, social media affects public relations professionals in many different ways. Those fully immersed in social media often find themselves learning something new as issues come up -- issues never covered in training. Is there a copyright issue? What course of action do you pursue if someone is anonymously writing negative reviews about your company? What about a particularly scathing Facebook comment?

When questions come up, what is your next step?

PRSA Cincinnati organized an extremely useful panel with some of the best legal pros in town to answer these and other questions. On June 23 at their downtown office, a panel of attorneys from Vorys provided insightful answers to questions on the legalities behind daily social media use and protecting your brand.

Our panelists included:

  • Whitney C. Gibson, Esq. Leader in the firm’s Internet defamation and brand protection group, which has worked on hundreds of Internet-related cases from across the country and develops solutions for companies being damaged or attacked online.
  • Adam C. Sherman, Esq. Member of the litigation practice with a focus on trademark and copyright protection, unfair competition, brand protection, Internet defamation and commercial litigation. He is also an adjunct professor at Northern Kentucky University.
  • Colleen M. Devanney, Esq. Associate and member of Vorys Internet defamation and brand protection group. She is experienced in Internet defamation, false reviews, traffic diversion, trademark infringement, SEO manipulation, copyright infringement and public disclosure of private facts.

TOPIC: Wikipedia nightmares

Addressing the beast that is Wikipedia requires a little bit of strategy. According to Gibson, Wikipedia allows people who are the subject of biographies on Wikipedia, such as company executives, to request deletion of the biographies, if the individual is not considered notable.

Devanney also added that these executive pages are designed to be objective and Wikipedia can adjust for neutrality and fairness. She said to keep in mind that asking a Wikipedia editor for help in revising an article, instead of attempting to do it yourself, is more likely to have a better result.

TOPIC: Photos and fair use/copyright guidelines

Sherman cleared up any confusion about using images online by stating that every picture is subject to copyright. If you’re using a picture, you must have the rights to it unless it falls under “fair use.”

To determine if an item falls under fair use, Sherman advises individuals to ask themselves four questions;

  • How are you using this picture? Is it commercial (against fair use) or educational?
  • Is it more creative (against fair use) as opposed to factual?
  • How much of the photo are you using? Is it a cropped part of it? *(i.e., Is that the most valuable, interesting part of the image?)
  • Is your use going to affect the commercial market for the photo? (i.e., If your use of the original work affects the likelihood that people will buy the original work, this weighs against fair use.)

Sherman also encourages attribution. Nothing irks photographers more than using their photos without attribution. But attribution is not a substitute for permission. Best practices require getting written permission from the photographer.

Permission can also be implied from the circumstances. If a contest requires contestants to post a picture on Instagram with a specific hashtag, use of the hashtag in the post should be implied permission to use the photo. The best practice is to include that use of the hashtag grants permission in the contest rules. 

TOPIC: Negative comments on Facebook

You can report a negative post to Facebook, Devanney noted. Oftentimes, a personal attack will be a violation of Facebook’s Terms of Service, and Facebook will remove it based on this. Facebook does not want to be the vessel for mean things online.

Gibson agreed and said it’s easy for people to destroy lives [with these comments]. When you are seeking to remove a particularly nasty comment, evoke sympathy for the person instead of threatening to sue.

Sherman also added that Facebook seems more receptive to removals based on violations of its Terms of Service as opposed to legal claims.

TOPIC: False reviews/anonymity

Gibson’s approach to false reviews is simple. They equal false advertising. In discussing a situation in which Vorys served a subpoena to get the identity of those posting false reviews, Vorys had to prove it was a person affiliated with a company’s competitor. False reviews are often planted by competitors who believe they are anonymous, but they really aren’t.

Gibson also mentioned Hushmail, a privacy-oriented email service with built-in encryption which is growing in popularity and allows individuals to negatively impact competitors or former employers. His general advice in regards to this was very clear;

 “Never believe that you are anonymous. Companies can find you with just a little bit of work. Once we serve them [with a subpoena], they give up the identity immediately.”

Jessica Stringfield is the marketing and communications associate at the Cincinnati Art Museum.

Jessica Stringfield is the marketing and communications associate at the Cincinnati Art Museum.