This document provides an overview of key legal issues to consider when using social media, including defamation, copyright, and privacy. It discusses how the law applies to different types of content and offers tips for minimizing risks. The main points are that context is important, factual accuracy is essential to avoid defamation claims, fair use and attribution principles apply to copyrighted content, and consent should be obtained when sharing private information. Resources for further information are also listed.

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)