Following the release of the new Twitter, (which now includes embedded video) I wrote a post offering 5 Twitter video marketing strategies for businesses who want to take advantage of video on new Twitter. I wanted to find out, from a legal perspective, how businesses can use video in twitter and other social media sites responsibly, and not run afoul of the law.
Listen to my podcast interview with Internet lawyers and social media legal experts Mark J. Rosenberg and Daliah Saper as we discuss the potential legal issues with twitter and video:
For us to understand the potential legal issues with twitter and video, we have to first understand WHY people behave irresponsibility when they're on Twitter.
I asked attorney Mark J. Rosenberg to share his take on it:
"With Twitter, it's so easy and so cheap and so quick, that people shoot before thinking, and say stupid things. That's my whole theory about Twitter. You end up getting into trade libel, and defamation, and infringement issues. If you had the opportunity to think twice, you wouldn't (be as likely to) do it. But because it's so easy to respond on Twitter, that's what happens.”
Twitter Video Marketing Legal Issues Q&A
Me: What would you consider to be the most important legal issues today with using Twitter for business purposes?
Daliah Saper: I think it's the same legal issues as other social media and networks, which is the lack of filter when people are using them. The other issues involve privacy, leakage of trade secrets, defamation, infringement of other people's intellectual property. I'm sure we're going to discover even more cases as the (twitter) site develops further and more users are using it, and more frequently.
Me: What's a scenario that comes to mind with video in twitter that could present legal problems for businesses?
Daliah: I think twitter is such an interesting platform, because you're not hosting any of your own videos on the site, itself. Those videos appear from linking and embedding (from videos being hosted elsewhere). Those Twitter legal issues have yet to be flushed out – whether linking to a video is infringement, or not? Or, whether the redistribution of some sort of defamatory content, or participating in the defamation (holds one culpable)? We've already talked about copyright infringement, and are tweets copyrightable? The answer to that is, it's pretty short phrases, and pretty short phrases aren't copyrightable. So we're going to have to wait and see what happens (in the courts).
Me: So what are some consequences – either actual or potential – for a business NOT being legally responsible with its twitter usage?
Daliah: Consequences are the same as with traditional causes of action. You're looking at injunctions, leaking of trade secrets, damages in excess of $100,000 for intellectual property infringement, lost profits, etcetera. In the context of defamation, you're also dealing with punitive damages, which can reach in the millions. And of course, there's the cost and expense of litigation itself.
Me: What criteria should someone look for in selecting an attorney, if they have a twitter-related legal issue?
Daliah: I think the most important criteria is someone who actually understands the social media tools, to be able to effectively argue and litigate on your behalf. It's one thing to read about social media; it's quite another thing to actually use it, and make it a part of your daily existence. I would recommend an attorney who's using these social networking tools for his or her own practice.
Me: Are there any basic safeguards that businesses and professionally-minded people can take with their usage of twitter?
Daliah: I think that having social media policies are really important; and, having discussions with existing employees as to what's appropriate conduct and what's not; and reinforcing those important notes repeatedly throughout the course of one's employment, and as a matter of course for the business.
Me: Are social media policies something that attorneys like you can help businesses out with putting together and making legally binding?
Daliah: Absolutely. And, there's no shortage of examples on the Internet, through various social media organizations that are seeking to help each other.
Me: What do you predict will be at the forefront of legal issues with twitter in the years to come?
Daliah: As the technology continues to develop, I think the most important legal issue for businesses with twitter will be: Is embedding infringement; or, is it an implied license to use (that content)? You especially have to look at the issue in an intellectual property context.
I think as legal systems (i.e., the courts) start to understand what these tools are; they're going to be able to follow them a lot better. Right now our court system hasn't quite caught up with the explanations of what's happening in social media and networking; and a lot of the context of the issues isn't making it through the courts.
Me: Do you see any potential change in the law happening in the near future?
Daliah: If it was up to me, I would lobby Congress today regarding some sort of take-down notice procedure that's a part of the DMCA (Digital Millennium Copyright Act), that does not exist in the CDA (Communications Decency Act). Right now, publishers get a kind of blanket immunity, so long as they're not the ones producing the content; they have no responsibility beyond that. I think it's important for publishers to have some sort of accountability for defamatory content.