[SXSW] If you tweet sh*t, think of these social media law tips

Posted on by Martin Pasquier

Social media and law often meet but rarely understand each other. Technology is fast-changing (be it for instance Facebook ever-changing rules), and law is in a more long-term process which makes it relatively unable to compete in the digital race. That’s why SXSW Interactive conference « Can you tweet that ? » was interesting to attend, with many recent examples shown to make us understand where the yellow line could be drawn : « A resident tweets about a moldy apartment; the apartment company sues her for libel. An employee is fired because of a photo on Facebook. A monkey takes a self portrait on a digital camera accidently left in the forest by a photographer. Who owns the copyright – the monkey or the photographer? »

These cases were a pretext for Dara Quackenbush, an expert in PR and marketing now professor at Texas State University, to help us know whether we could « tweet that ». Nota bene for foreigners and French readers : we’re in the US territory, with specific laws on libel and a (too?) strong judicial culture.

A monkey taking a photograph of itself... Who owns the copyright ?

Dara offers to check if our messages could be seen as libel with a 5-question test covering the main possible attacks one could undergo :

  1. My message is a defamation. What I say hurts the reputation of the person or organization I’m talking about.
  2. My message is a publication. What I say was a private affair and should not have been made public.
  3. My message is an identification, pointing to a specific person or institution and attacking him/it.
  4. My message is a negligence. I did not tell all what I knew in my message, or missed an important part of the story, which now hurts the reputation of the person or organization talked about.
  5. My message contains damages.

If your tweet, or Facebook update, of picture (in the US, they have the same juridical weight as any printed text) proves positive to one of this test, then, you could be in trouble. In a country that « plays » a lot with law and full of expert lawyers, this is a good reflex to bear in mind.

Associated Press and artist Shepard Fairey found a mutual arrangement... out of the courts.

What if you really wanted to voice your opinion, event if it may hurt a person or an organization ? Here’s three ways to defend yourself :

  1. You said the truth. It hurts, but this is it, and you have a proof.
  2. You’re talking of a public person. A public person is either an organization, or a political representative whose overall activity (even « private ») is in the public domain.
  3. Your message is a fair criticism : it may hurt, but is not considered an attack.

This last defence shows us how tricky it can be. Drawing a line between « fair criticism » and an unfair one is tough. Dara shows other examples that make us understand how hard it is, with social media, to have precise rules :

  • The picture of this monkey was taken… by the monkey itself. Who owns the copyright on it ? The monkey ? The photographer ? His news agency ?
  • The famous « Hope » picture of Obama, by Shepard Fairey, is based on an actual picture of Associated Press. The struggle between the artist and the company has been solved by a mutual (and still unknown) arrangement
  • Last but not least, Casey Anthony still has several injurious Facebook pages denouncing her as a bitch or even a person to kill, which is clearly against Facebook rules on harassment prevention.

So if you tweet sh*t, think of these 5 tests before doing so !

Martin Pasquier