New Media and
the law

Who am I?
New media lawyer, blogger, social
media fanatic

Social media
is very good!
It is even better than ...

But there are risks

Don’t panic

The legal stuff ...

Issues to consider ...
✦ Freedom of expression
✦ Content licensing
✦ Privacy
✦ Unlawful competition

(we call it
“Freedom of
Expression”)

This is the right ...

There are
competing
rights ...

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.”

“Because they have never been exposed to the sinful ways of the West, the various tribes of South Africa live healthy and
peaceful lives, only occasionally indulging in a bit of ethnic cleansing.”

It is a careful
balancing act

Content

What is copyright?
✦ Exclusive rights
✦ Works embodying intellectual content
✦ Authorise others
✦ Perform certain acts (for example, to exploit
works for personal gain or profit)

There are
exemptions
from copyright
infringement

✦ 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

Is sharing caring?
✦ Copyright vests by default
✦ Copyright Act 98 of 1978
✦ Severely limits how content can be used without
permission
✦ Not conducive to Web 2.0 free luvin’

There is another option ...

What is Creative Commons all about?

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

How about a practical
example

36 Ghosts IV by Nine Inch Nails released under a Creative Commons Attribution Non-Commercial ShareAlike 3.0 US
license

✦ 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

So what
happened?

2 500 x $300 = $750 000

$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/

Oh, and NIN isn’t signed to a major record label

and it isn’t just about the big bands

Jonathan Coulton
jonathancoulton.com

Unlawful
competition

Customer relationships
✦ Employees are the face of a company
✦ Who really forms relationships with customers?
✦ Are employers protected if employees leave?
✦ Who has the power?

The stick
Restraint of trade
provisions*
Monitor data transfers and
employee communications
Disciplinary procedures
Dismissals
*Most definitely enforceable

The carrot
Participate in relationship
building exercises with
customers
Look after employees
Take an interest in who is
saying what to whom

Privacy

Which of
these do
you use?

How much do you
publish online?

What happens to
what you publish
online?

What can you do?

Take your chances

or ...

Read the terms of
use

Read the privacy
policy

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.

Claim your identity on the Web

on the other hand you could be the provider ...

in which case there are a
couple things to bear in
mind ...

There are rules about gathering personal
information

“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

How would this
affect you?

Makes
biometric
security
systems a little
tricky

Suddenly people’s opinions you may gather
are protected as personal information

Do you have a
privacy policy?

Privacy in social media
✦ Can be tricky
✦ Read the terms of use
✦ Be sensible about sensitive information
✦ There can be outages and exploits

Run for the hills?
✦ No, it is not all bad
✦ Social media has much to offer businesses
✦ The main thing is to be aware of the risks ...
✦ ... and provide for them

My contact details
✦ Paul Jacobson
✦ 083 444 8260
✦ paulj@jacobson.co.za
✦ pauljacobson.org

Where you can find me
paul.myplaxo.com
linkedin.com/in/paulj
twitter.com/pauljacobson
pownce.com/pauljacobson
pejrm1

Selected image credits*
✦ Slide 3: Image by Cambodia4Kidsorg (http://www.flickr.com/photos/cambodia4kidsorg/354932362/) licensed under Creative
Commons Attribution 2.0 license;
✦ Slide 5: Listen to ME! by Orange Beard (Creative Commons BY 2.0) at http://www.flickr.com/photos/metrojp/92038203/;
✦ Slide 6: the conversation by polandeze (Creative Commons BY 2.0) at http://flickr.com/photos/polandeze/1206596658/;
✦ Slide 7: Sharing birthday cake by efleming (Creative Commons BY 2.0) at http://www.flickr.com/photos/efleming/237379252/;
✦ Slide 8: Untitled by ms.Tea (http://flickr.com/photos/teagrrl/79351300/in/set-1689764/) licensed under a Creative Commons
Attribution 2.0 license;
✦ Slide 11: Constitutional Court by Paul Jacobson licensed under Creative Commons Attribution ShareAlike 2.0 license;
✦ Slide 13: Free speech zone by mus (http://flickr.com/photos/mus/3457967/) licensed under Creative Commons Attribution ShareAlike
2.0 license;
✦ Slide 15: Doors of the Constitutional Court by Paul Jacobson licensed under a Creative Commons Attribution ShareAlike 2.0 license;
✦ Slide 18: Balancing Act by zeebleoop (http://flickr.com/photos/zeebleoop/325400310/) licensed under a Creative Commons
Attribution No Derivatives 2.0 license;
✦ Slide 19: Free Content for a Free Society! 7/12 by Matthias Mehldau (Creative Commons BY 2.0) at http://flickr.com/photos/
wetterfrosch/130493617/;
✦ Slide 24: More sheet music by pfly (http://flickr.com/photos/pfly/128167751/) licensed under Creative Commons Attribution
ShareAlike 2.0 license;
✦ Slide 26: Vinyl by stevecadman (http://flickr.com/photos/stevecadman/172600054/) licensed under Creative Commons Attribution
ShareAlike 2.0 license;
✦ Slide 28: copyright by tuppus (http://flickr.com/photos/tupwanders/79458852/) licensed under Creative Commons Attribution 2.0
license ...
✦ Slide 60: my fingerprint (index, left hand) (http://flickr.com/photos/fazen/3778408/) licensed under a Creative Commons Attribution
2.0 license;
✦ Slide 61: 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