Legal Issues in Social Media With David Fraser

I spent this past Sunday in Dartmouth at the first Podcamp Halifax. As an enthusiast of the Podcamp movement of grassroots community-run events for the social media set (and an organizer of Podcamp Toronto), I was there to help them kick off their first such event, as well as spend time meeting some fascinating people.

One such person is David Fraser, lawyer with McInnes Cooper with whom I have been corresponding for a few years now, president of the Canadian Information Technology Law Association, and law blogger (see his posts here on Slaw and also his stellar Canadian Privacy Law Blog). It was terrific to finally meet him in person.

At Podcamp Halifax he led a discussion about legal issues and social media. The discussion was fairly detailed, but I managed to make a few notes. Please note this is for general informational purposes, not legal advice, and there is always that slight possibility I may have written something down inaccurately. Please consult with a lawyer if you have questions or concerns. Here, then, are my notes from David’s session which was mostly question and answer format:

Q: All these people videotaping, photographing others at this event. Is that legal?
A: They can do it in a public place, with certain boundaries. These images cannot be used for business purposes without your permission. Best practice at an event like this, have disclaimers posted.

Q: How do you stop an online community from doing bad things as a group?
A: In Canada: you go after the service provider e.g. to have them shut them down, because difficult to find the ringleader. This is how the law deals with technology. It is a bit like banning pencils so that no one can write anything bad. But, what kind of role/responsibility should the service provider have? Once the service provider knows about it, they should take action. They don’t have to police it, however. Puts service providers in a difficult spot.

Q: Jurisdiction – can you enforce a Canadian judgment for a service provider based in another country?
A: For Facebook, doing business and with customers in Canada, they probably can, but for someone operating in Bosnia, for example, probably not. One of the challenges is that it is completely global. You can put something up perfectly fine in Canada and the U.S., but could be against the laws in Pakistan or Saudi Arabia. You could be liable in those countries. You can use software to limit their view of your content. Tends to be more in theory than what really happens, fortunately.

Content Licensing

  • providing services for someone – easy to get photos all over the place, but it is easier to get caught with services such as Tineye. If content was created by a human being or a corporation, it is copyrighted – you need their permission to use it. You need to be very careful about this. Companies are getting more vigilant.
  • Same for code
  • In Canada: “fair dealing” (not like “fair use” in the U.S.). artistic, literary or dramatic work – even just a paragraph can be subject to copyright. You can use little bits, but give attribution. Fair dealing used only for private research and study. If two people independently create the exact same thing, they can both have copyright; however, first come first serve to trademark. If you find someone else in similar business has same tagline, you could be infringing their trademark.
  • Digital rights management – in Canada under current copyright law, you can make copies, have to break into the content to copy. May not be able to in the near future. Copyright is meant to balance interest between creators and users, whereas DRM pulls legal rights in favour of the creators. Librarians will want to get together to fight against legislation coming down.

Creative Commons

  • a great way for making content available
  • for example, can designate commercial or non-commercial
  • you can also ask the person for use, commercial use
  • Flickr or stock photo sites – if you need to contact the person for permission (i.e. if your use is not covered by Creative Commons), what if they don’t respond right away? You cannot use unless in the public domain (that person needs to be dead 50 years).

Contract

  • you can have a valid contract orally or in writing; can be done electronically – offer, acceptance, consideration (value for the goods or service) – the laws are relatively consistent worldwide; based on an international convention.
  • email that have unsolicited “contracts” at the bottom e.g. if you received this in error, etc. Not really enforceable; however, do pay attention to disclaimers at the bottom of the email addresses.

Privacy

  • if you put information about yourself on the line, you should expect it to remain there forever; difficult to argue that it is private

Open Source

  • legal implication/problems? – can be problematic for software companies. Any company creating software they intend to sell, they need to ensure there is no Open Source code in it. Otherwise, you need to make your software available to everybody under the Open Source license.

Human Resources

  • there are employers asking if someone has a Facebook page; and even employers asking interviewees to log in for them and show them their page during an interview
  • if they ask you if you are on Facebook – you should not lie in an interview
  • asking to see your page during an interview is crossing a boundary – you probably don’t want to work there

YouTube videos

  • do you have permission to use?
  • he thinks it is implicit because the embed code is available.

It is evident the group had a lot of thoughts around legal issues. Some of it concerned personal issues such as privacy; I could see some were struggling with the cultural shift of being visible online. The other area of concern was from content creators who want to know how to make things available without giving everything away freely. So many of these are still grey areas, I hope a few of the lawyers here on Slaw in addition to David Fraser will watch and help us understand.

It was a pleasure to meet David finally in person, and to attend the first Podcamp Halifax. Related events coming up later this year:

Northern Voice, Vancouver – Feb. 20 & 21, 2009 – http://2009.northernvoice.ca/ [nominal registration fee]
Podcamp Toronto – Feb. 21 & 22, 2009 – http://podcamptoronto.pbwiki.com/
Podcamp London (ON) – April 25, 2009 – http://podcamplondon.com/
Podcamp Montreal – Sept. 2009 (tentative) – http://podcampmontreal.org/

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Comments

  1. Any company creating software they intend to sell, they need to ensure there is no Open Source code in it. Otherwise, you need to make your software available to everybody under the Open Source license.

    That’s a bit misleading. There is no “Open Source license,” but a bunch of open source licenses. It’s not “open source” that’s the issue, but copyleft. Proprietary software companies can legally and easily take non-copyleft open source software and use it in their proprietary software. Apple does this all the time. It’s only copyleft software (e.g. GPL software) that companies need to watch out for if they’re not willing to release their source code.

  2. Thank you for clarifying, Blaise. I think partly he was putting it into simpler terms for a non-legal audience, and partly I was simplifying it further in my notes.

  3. Great post. I’ve think you’ve highlighted several important questions that all companies participating in social media should consider. I referenced your post in a article I wrote about some of the challenges businesses faces regarding social media.