1. Avoiding Legal Landmines in
Social Media
Ellyn Angelotti
Faculty, Digital trends & social media
Poynter Institute

2. What’s Changing?

3. Disclaimer
• This is not specific legal advice, but legal
information.

4. Some Rules of Thumb
• When it comes to the law, “it depends”
– Gray areas are common
– Different facts change how the law is applied
• Common questions
– What is reasonable?
– What is foreseeable?
– What are my/my audiences expectations?

5. Just because you can,
should you?
• Legal vs. Ethical issues
– Gut check
– What are your values?
– Do you have a decision-making process?
• Would you/could you share your process?

6. The new legal issues?
• Posting offensive/inappropriate content
– Badmouthing others
• Copying what people find on websites
• Privacy expectations
– Social media files, emails, etc.

7. What every site should have
• Terms of Use
– Set boundaries for your users
• Privacy Policy
– Let your users know what information you
collect and how you use it
– Potential opt out options

8. What every web users should
know
• Duty to read
– Terms of Service/
Privacy policies
– User agreements

9. Danger Areas
• Defamation
– Key Point: Falsity of Fact
• Copyright
– Key Point: Market Value
• Privacy
– Key Point: Consent

10. Defamation: Guiding Values
• Seek truth and report it
• Minimize harm

11. What is Defamation?
• Injury to reputation caused by publishing
a false statement of fact AND
– A publisher was careless, reckless or had
knowledge of falsity
– The defamed person can be identified
• Public vs. Private person
– Injures a person or business/exposes
someone to hatred, ridicule or contempt

12. What is NOT Defamation?
• Who
– Libelproof Defendants
• Someone with an already tarnished reputation
– Deceased
– *More difficult* Public Figures
• Must prove actual malice

13. Who Is A Public Figure?

14. Who Is A Public Figure?

15. Who Is A Public Figure?

16. Who Is A Public Figure?

17. Who Is A Public Figure?

18. Who Is A Public Figure?

19. Content: Fact vs. Opinion
• Is it true?
• Can you determine if it is true or false?
• Context

20. What is not defamation?
• Content
– Opinions
• The “true or false” test
– Hyperbole
– Parody

21. Is it Defamatory?
• My neighbor John Smith is a stinking lush.
• In my opinion the mayor is an alcoholic.
• My attorney Dan Jackson is a crook.
• All Florida attorneys are crooks.
• Calling a TV show participant a “local
loser,” “chicken butt” and “big skank”
• Calling someone a pimp

22. Defamation Tips
• Create standards and follow them
– Accuracy (Check, double check and triple
check)
– Thoroughness (The more perspectives and
sources, the better)
– If you’re making a bold claim, make sure all
sides are represented (gives you more
credibility)
– Support opinions with on-the-record quotes

23. Defamation Tips
• We all make mistakes
– Promptly correcting or retracting inaccuracies
can boost your credibility with your audience
– Carefully investigate claims that you are
incorrect

24. Online Commenters
• Determine how you will moderate
comments
– Before or after publication
– Will you strike or edit comments?
• Thoughtfully craft your terms of service
• Authors: make your presence known
• Enable user comments only for stories
that will benefit from it/if you can handle it.

25. What is Copyright?
• Grants authors exclusive rights to works
and the rights to:
– Reproduce
– Distribute
– Perform
– Display
– Transfer rights
©

26. What Copyright Isn’t
• Not subject to copyright:
– Idea
– Concept
– Discovery
– Laws
– “Fair Use”
– “70 years rule”

27. Copyright Era vs.
Open-source World
• Copyright-era language
– Scoop, byline, beat, etc.
• Open-source language
– Collaboration, retweeting, embeddable
content, etc.

28. Copyright Issues in Linking
• Deep Linking: Putting a link on your site
that opens a specific page on another
site.
• Inline Linking: Embedding HTML code on
your site so it displays content directly
from another site.

29. Copyright Issues in Social Media
• Typically the original author owns the
copyright (should clarify this with
contract).
• Some posts do not meet minimal creative
threshold and may not have copyright
protection.
• Aggregation can bring up copyright issues
.

30. Fair Use Factors
• Subjective balancing test
• Four areas
– Purpose and character
– Nature of work
– Amount of work used
– Market value effect

31. Fair Use
• Purpose & character (in the public interest)
– News reporting
– Non-profit
– Adds a new meaning to the original work

32. Fair Use
• Nature of the work
– Creative work is more protected than fact-
based work

33. Fair Use
• Amount of work used (relative)
– Not necessarily based on proportion
– Look at the “heart” of the work
– Too little for fair use: “de minimis”

34. Fair Use
• Market value effect
– Most important factor

35. Attribution/Disclaimer
• Will not protect you from a copyright
claim*
* Unless the owner has granted rights via
Creative Commons

36. Online Commenters
• “Notice and takedown”
– DCMA protects publishers
• You will generally not be liable if you promptly
take down a comment after being notified by a
copyright owner

37. Copyright Tips
• Create your own work
• If you do use others’ work …
– Ask for permission
– Give credit
– Ensure that it is fair use

38. What is Privacy?
• Publishing personal information without
permission
• Intrusion into personal space
• False light (in some states)
• Right of publicity (commercial
misappropriation)

39. What is Privacy?
• Personally Identifiable
Information
• Personally
Embarrassing
Information

40. How Private Are You?

41. When is Privacy Violated?
• When an aggrieved person has a
– Reasonable expectation of privacy (no
established method to determine this)

42. Are Posts Private?
• Public postings on public sites (i.e.
Twitter) are not private.
• Secured Communication Act may protect
posts on:
– Password-protected sites
– If poster has deliberately prevented outside
users from viewing site

44. Elements of Intrusion
• Intentional invasion of someone’s private
affairs
• Reasonably offensive
• Private matter
• Mental Anguish

45. Privacy Tips
• Gather content from public places and
public sources
• Be cautious when technology lets you
intrude (lenses, microphones, etc)
• Get consent, when possible.
• Rely on public information

46. Is it Private?
• Who owns the tool or account being used?
• Where are the messages stored?
• What network is the information traveling
through?
• Are the messages being sent on employer
time?
• Does the employee affiliate with employer in
message?

47. What Can I Do?
• Have a process/ policy
– Coach people on how to use the tools and
the importance of good judgment
• If you’re posting content from others from
social media to your site, consider the
benefits of a moderator

48. #PrivChat
• Center for Democracy & Technology

49. FOIA Requests

50. Resources
• Electronic Frontier Foundation
– http://www.eff.org/
• Reporters Committee for the Freedom of the
Press
– http://www.rcfp.org/
• Online Media Law: The Basics for Bloggers and
Other Publishers
– http://www.newsu.org
• Citizen Media Law Project
– http://www.citmedialaw.org/

51. For More Information
• Section 512 of the Digital Millennium
Copyright Act
• CDA 230 (Section 230 of the
Communications Decency Act)