New Media:
managing your legal
risks
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Paul Jacobson
Web and Digital Media Lawyer
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The are risks
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Don’t panic
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The legal stuff ...
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Issues to consider ...
✦ Freedom of expression
✦ Content licensing
✦ Privacy
✦ Unlawful competition
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(we call it
“Freedom of
Expression”)
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This is the right ...
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There are
competing
rights ...
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versus
“Freedom of the press does not mean that the press is free to ruin a reputation or break a confidence, or to pollute the cause of justice
or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable
restraint should be placed on the press as to what they should publish.”
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It is all about balance
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Content
licensing
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What is copyright?
✦ Exclusive rights
✦ Works embodying intellectual content
✦ Authorise others
✦ Perform certain acts (for example, to exploit works
for personal gain or profit)
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There are exemptions ...
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✦ Fair dealing
✦ Use for judicial proceedings
✦ Quotations
✦ Illustrations for teaching
✦ Ephemeral copies
✦ Works delivered in public
✦ Reproductions in press or broadcast
✦ Official texts, political speeches, news of the day
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Is sharing caring under
the Copyright Act?
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There is another option ...
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Creative Commons licenses are free licenses that
permit a range of uses of content licensed under
them
Creative Commons licenses work within the
framework established by Copyright
http://creativecommons.org/about/licenses/meet-
the-licenses
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How about a practical
example
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36 Ghosts IV by Nine Inch Nails released under a Creative Commons Attribution Non-Commercial ShareAlike 3.0 US license
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✦ Free download (9 tracks)
✦ $5 download (all 4 albums, high quality)*
✦ $10 2 CD set (including download)
✦ $75 deluxe edition 2 CD, 1 DVD, 1 Blu-ray
disc (don’t forget the downloads)
✦ $300 Ultra-deluxe edition superpack
* I bought one one these ... and I am barely a fan
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So what happened?
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2 500 x $300 = $750 000
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$1 619 420 in the first
week of sales*
*According to Rolling Stone: http://www.rollingstone.com/rockdaily/index.php/2008/03/13/nine-inch-nails-ghosts-i-iv-makes-trent-reznor-an-instant-millionaire/
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Oh, and NIN isn’t signed to a major record label
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and it isn’t just about the big bands
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Jonathan Coulton
jonathancoulton.com
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Unlawful
competition
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Customer relationships
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The stick
Restraint of trade provisions*
Monitor data transfers and
employee communications
Disciplinary procedures
Dismissals
*Most definitely enforceable
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The carrot
Participate in relationship
building exercises with
customers
Look after employees
Take an interest in who is
saying what to whom
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Privacy
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Which of
these do you
use?
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How much do you
publish online?
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What happens to
what you publish
online?
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Take your chances
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or ...
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Read the terms of
use
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Read the privacy
policy
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Draw lines in the sand
✦ What information is most
sensitive?
✦ Decide to never let that
information out into the wild.
✦ Everything else is
compromised and public.
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Claim your identity on the Web
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on the other hand you could be the provider ...
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in which case there are a
couple things to bear in
mind ...
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There are rules about gathering personal information
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“personal information”1 means information about an identifiable, natural person, and in so far as it is applicable, an
identifiable, juristic person, including, but not limited to-
a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour,
sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language
and birth of the person;
b) information relating to the education or the medical, criminal or employment history of the person
or information relating to financial transactions in which the person has been involved;
c) any identifying number, symbol or other particular assigned to the person;
d) the address, fingerprints or blood type of the person;
e) the personal opinions, views or preferences of the person, except where they are about another individual or
about a proposal for a grant, an award or a prize to be made to another individual;
f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or
further correspondence that would reveal the contents of the original correspondence;
g) the views or opinions of another individual about the person;
h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the person,
but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
i) the name of the person where it appears with other personal information relating to the person or where the disclosure
of the name itself would reveal information about the person;
j) but excludes information about a natural person who has been dead, or a juristic person that has ceased to
exist, for more than 20 years;
Draft Protection of Personal Information Bill
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How would this
affect you?
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Makes
biometric
security systems
a little tricky
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Suddenly people’s opinions you may gather
are protected as personal information
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Privacy can be tricky ...
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Do you have a
privacy policy?
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Social media has tremendous potential
provided you manage your risks effectively
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Paul Jacobson
083 444 8260
paulj@jacobson.co.za
pauljacobson.org
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paul.myplaxo.com
linkedin.com/in/paulj
identi.ca/pauljacobson
twitter.com/pauljacobson
pejrm1
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Selected image credits*
✦ Slide 3: Image by Cambodia4Kidsorg (http://www.flickr.com/photos/cambodia4kidsorg/354932362/) licensed under
Creative Commons Attribution 2.0 license;
✦ Slide 6: Constitutional Court by Paul Jacobson licensed under Creative Commons Attribution ShareAlike 2.0
license;
✦ Slide 8: Free speech zone by mus (http://flickr.com/photos/mus/3457967/) licensed under Creative Commons
Attribution ShareAlike 2.0 license;
✦ Slide 10: Doors of the Constitutional Court by Paul Jacobson licensed under a Creative Commons Attribution
ShareAlike 2.0 license;
✦ Slide 12: Balancing Act by zeebleoop (http://flickr.com/photos/zeebleoop/325400310/) licensed under a Creative
Commons Attribution No Derivatives 2.0 license;
✦ Slide 13: Free Content for a Free Society! 7/12 by Matthias Mehldau (Creative Commons BY 2.0) at http://
flickr.com/photos/wetterfrosch/130493617/;
✦ Slide 18: Sharing birthday cake by efleming (Creative Commons BY 2.0) at http://www.flickr.com/photos/efleming/
237379252/;
✦ Slide 34: the conversation by polandeze (Creative Commons BY 2.0) at http://flickr.com/photos/polandeze/
1206596658/;
✦ Slide 54: my fingerprint (index, left hand) (http://flickr.com/photos/fazen/3778408/) licensed under a Creative
Commons Attribution 2.0 license;
✦ Slide 55: interview (http://flickr.com/photos/timsnell/1387723389/) licensed under a Creative Commons Attribution
No-Derivatives 2.0 license.
*All images used are available under license from iStockphoto.com, have been licensed under Creative Commons license or are in the public domain.
Where the images are licensed under Creative Commons license, the license permits commercial use. Due to an error or pure laziness on my part, not all
images are properly attributed in this presentation.
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