It's a social world out there.

The Legal Implications of Social Media

Posted on: February 22, 2010

The way the world communicates will never be the same. Social media has forever changed the was in which people consume media as well as how people communicate on a daily basis.  The ease with which communication and media consumption now come is not without consequence.  The legal system has been trying since the introduction of the world wide web and, more specifically social media to find its place in the mix. It is clear that legal regulation is necessary in many aspects of social media use. The number of legal cases involving social media is on the rise. As social media replaces many out of date communication tools, snail mail or even phones, its name will be uttered much more frequently in courtrooms around the world.  Finding a balance between too much control and laws that prove to be out of date by the time they are passed must be a key goal for the legal system in its efforts to manage illegal acts happening through social media outlets.  The rapid growth and change that is taking place online in these new mediums is unprecedented, this fact combined with the increased anonymity and sheer size of media will present the legal system with a challenge unlike any it has seen before.

It is important to start by discussing when the legal system saw the first ripples of technology’s legal impact with the cases surrounding pioneer music sharing service, Napster, taking place in the late 90’s and early 2000’s. These cases were also the first time it became clear how powerful and far reaching the internet’s sharing capabilities would be, Napster laid a foundation that would be prove to be very similar to the power of social media and how it would impact legal systems.  Napster and the amount of pirated music it provided before it was shut down in 2001, gave the legal system a glimpse of how copyright laws would need to evolve as a result of the internet.  The Recording Industry Association of America was the first to step forward and question the legal infringements this kind of service would impose.  While the controversy caused Napster to become an Internet sensation, through which billions of songs were traded, its success was short lived after U.S. Federal courts concluded that while the users were the ones trading the songs illegally, Napster was acting as the broker for the transactions and it was housed on U.S. soil. Thus, if Napster did not shut the server down, the U.S. government would. Napster service was shut down in July of 2001. (3) The Napster example was the first of its kind, but there is plenty more where it came from.  Other services similar to Napster followed in the mid to late 2000’s, all of them brought legal issues involving piracy and copyright infringements. This was only the beginning for the internets impact on file sharing of all kinds, although just as it was in 2001 when Napster shut down after having already shared so much music illegally, laws were about five years behind the technology trends. This is similar to what is being seen today in 2010 around social media use, technology is, as it always has been, evolving faster than the legal system can handle.

The file sharing seen in the music piracy cases of the 2000’s should have given the legal system an idea of what was coming with social networking sites.  While the premise is very different, and the kinds of information being shared are different, the amount of information being shared is not.  Social networking sites have evolved faster than anything technology has ever seen. The ease with which communication happens through social networks makes it appealing to all generations, making it the main form of communications for millions world wide.  Users can update profiles, share picture and comments in seconds. Sites such as Facebook and Twitter are home to billions of people around the world who are sharing information of all kinds. A vast amount of this digital information sharing is positive, educational resources have greatly expanded through social networks, news services have taken advantage of networks and made news sharing much faster, easier and cheaper, these are only a few of the benefits coming from social networks. However, social networks have also been a harbor for cyber bullying, reputation tarnishing and copyright violations to name only a few negative uses.

A main aspect of social networks that is misconstrued by many users, especially the younger generations is that of privacy.  Teens often think they are safe in these online communities, when in reality parents, teachers and predators are looking at their profiles all the time. The laws around teens and acceptable social network use are still seemingly non-excitant in the U.S. How the legal system will deal with privacy issues in online social networks is yet to be determined, and is currently concentrating on young people and their safety in these networks. (2) It is clear the laws around privacy on these networks needs to be solidified, the pace with which new issues are arising is too fast for laws to be effective in this arena yet. While the laws around privacy catch us with what is happening online, it is imperative to be skeptical and ensure that younger generations fully understand how powerful and dangerous social networks are.

Twitter and Facebook posts are taking the center stage for many legal issues around social media. Many of the cases coming from interactions on these sites have to do with the following legal issues, defamation, copyright infringement and trademark violations. Defamation is the publication of a false statement about another that causes harm to reputation, when these comments are written or recorder versus just spoken they are considered libel. (4) Social networks provide the perfect environment for this crime to be committed; millions are publishing negative comments about others that can cause harm to that person’s reputation.  Millions of cases are being fought around these issues and statements made through social networking sites.  However, the laws around these issues are often less than iron clad.  These laws are considered by many to be uncertain and complicated due to the design to protect free speech. (4)

While laws around defamation on social networks are still being solidified, one fact has become clear, the users, not the sites will take the heat. A recent act has provided the foundation for how social network sites can defend themselves in defamation cases:

“The Communications Decency Act (CDA), provides a safe harbor from defamation claims to social networking Web sites so long as the defendant is a provider or user of an interactive computer service, the asserted claim treats the defendant as a publisher or speaker of information, and the challenged communication is information provided by another information content provider. For a social network to shelter itself under the CDA, it is critical to avoid being classified as an “independent content provider.” (6)

This act provides legal safety for many social networking sites involving defamation, however, the person making the accusation on the site will not be protected. This act, written in 1996 was the first of its kind was at first an attempt to regulate pornographic material online, but today is used more to protect social networking services providers.

Trademark infringements are another area of law that is being affected by social media use.  A trademark can protect almost anything, a number, word or symbol, which is used by a company to identify its goods. (6)The Internet provides an arena in which it is nearly impossible to effectively regulate copyrights. Furthermore the cases that have come about have lead to laws that, while they protect copyrighted material, make it hard for the copyright holder to protect their work. This has come about as a result of one specific case, Hendrickson v. eBay. This case found EBay not guilty when they were persecuted for being part of the distribution of copyrighted material. “The significance of the eBay decision is that it shifts the burden of finding infringing marks posted on social networking Web sites to the owner of the trademark” (6) This legal finding makes the work of a copyright holder nearly impossible, tracking of ones copyright protected material would be a full time job.  This finding more fully protects sites and puts the punishment on users.  The current laws around copyright protected material on the Internet; specifically around social media give another reason that users must be educated before diving into social media.

In the time it took to complete this study of the legal implications of social media, much of it has changed, sites have updated and altered their privacy settings, new issues have arisen with changes in how certain services are used but the laws around these issues have no changed.  In many ways the legal system is the opposite of the Internet and social media.  While the Internet through social media provides instant updates, and an ease of use that is like no other medium, the legal system and all the procedures embedded it often-slow things down. Court hearings, appeals and judgments take time.  Change happens so rapidly in technology that laws, once passed are outdated.  A recent CNN article around laws and their ability to keep up changing technology states;

“Generally, it is at least five years behind technology as it is developing,” said Andrea Matwyshyn, a professor at the University of Pennsylvania’s Wharton School, who tracks the intersection of law and technology. The first is that it’s typically difficult to predict or anticipate technology innovations. Think of the music-sharing battles that began — and are still going on — after the advent of Napster.  Another reason is that it’s difficult to handle cases that deal with the Internet and the Web because it confronts a fundamental schism: Is the Web a unique, separate space or is it really an extension of real space? (5)

The internet provides so many new communication forms that laws are not accustomed to dealing with.  The ever-expanding use of social media is changing even further how the legal system needs to attend to virtual space.  The ease with which social media users can commit libel against friends and companies, or grab and reproduce trademarked materials or use copyrighted materials without permissions have greatly increased.  The legal system has worked to pass acts like the CDA, but must continue to rework these kinds of laws to adapt to the changing technologies.

Time is of the essence for the U.S. legal system to find its place in the social media world. Many authorities are working with sites like Facebook and Twitter to anonymously follow criminals, who social media use, is on the rise, more closely. These sites are cooperating with authorities in order to make their virtual spaces that much safer. (7) It is time for laws to be written around how sites should work with legal entities.  The issues around legal regulation of the Internet and social media are sensitive, but need to be dealt with as quickly as possible by the legal system.  If the issues around these technologies are not prioritized they will no longer be relevant, laws around technology must be at the forefront of many legal discussions.  It is important for legal regulations to be in place in order to promote the safe use of social media, the regulations must find a balance. They much not be overly restrictive on social media, as it today provide the main way in which millions of Americans practice their right to free speech. These regulations at the same time must be strong enough to punish those who are abusing the service social media provides.  It will be a challenge for the legal system to find this balance, but it is possible and needs to be addressed as soon as possible. Today the legal system is not able to keep up with changes in technology and their for legal attention.

Sources:

1)   Associated Press. (2010, February 4). House adds cell phone restrictions to texting bill – BostonHerald.com. Mobile – BostonHerald.com. Retrieved February 7, 2010, from http://www.bostonherald.com/news/politics/view.bg?articleid=1230674&srvc=rss

2)   Barnes, S. (2006, September 1). Barnes. First Monday. Retrieved February 7, 2010, from http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/1394/1312

3)    Goldsmith, J., & Wu, T. (2006).Who Controls the Internet?: Illusions of a Borderless World. New York: Oxford University Press, USA.

4)    Solove, D. J. (2008). The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. New Haven: Yale University Press.

5)    Tanneeru, M. (2009, November 17). Can the law keep up with technology? – CNN.com.CNN.com – Breaking News, U.S., World, Weather, Entertainment & Video News. Retrieved January 23, 2010, from http://www.cnn.com/2009/TECH/11/17/law.technology/index.html

6)   Viscounty, P., Archie, J., Alemi, F., & Allen, J. (n.d.). Social Networking and the Law: Virtual Social Communities Are Creating Real Legal Issues. American Bar Association – Defending Liberty, Pursuing Justice. Retrieved February 7, 2010, from http://www.abanet.org/buslaw/blt/2009-03-04/viscounty.shtml

7)    WATKINS, T. (2010, February 2). Use of Twitter, Facebook rising among gang members – washingtonpost.com. washingtonpost.com – nation, world, technology and Washington area news and headlines. Retrieved February 7, 2010, from http://www.washingtonpost.com/wp-dyn/content/article/2010/02/02/AR2010020200499.html

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