There are many reasons why you might want content removed from someone else’s website or social media feed. Some of the most frequent complaints concern copyright or trade mark infringement, but defamation and harassment are also common painpoints, as are privacy and data protection concerns. Following my recent article in the Oxford Journal of Intellectual Property Law & Practice exploring how to get unwanted deepfakes taken offline, this post provides an overview of nine common offenses people commit on social media.
Has There Been a Civil Wrong, or a Criminal Offense?
In very broad terms, civil wrongs or “causes of action” are what people sue each other over. These harms are perpetuated by one individual against another, for which the harmed person can seek compensation or repayment known as “damages”. Criminal offenses, on the other hand, warrant community condemnation and prosecution by the State. So when it comes to objectionable content online, the first thing to consider is whether or not it is actionable from a legal perspective, and if so, whether it is a civil wrong or a criminal offense. Because it’s a big subject, this post covers only civil wrongs. But in a later post, I’ll discuss criminal social media offenses, which may become a police matter. I’ll also explain some options when it comes to getting online content removed.
Although they say that “imitation is the sincerest form of flattery”, it’s worth remembering that copying and reposting content belonging to someone else can amount to copyright infringement. In the United Kingdom and the United States, copyright protection arises automatically whenever you create something new and original: you do not need to formally register your work for it to be protected. (However, unlike in the UK, in the U.S.A. you will have to register with the Copyright Office if you wish to bring a lawsuit for infringement.)
The bar for “originality” is very low, so most cases of online content satisfy this requirement. Put sfimply, copyright infringements occur when someone copies a “substantial” part of the original work without consent, unless a “fair dealing” exception applies. These exceptions include reposting something for the purpose of critique, parody, or private study – but this grey area of law is very nuanced, so it’s always best to speak to a lawyer if you’re concerned. The UK’s Intellectual Property Office has some good guidance on fair dealing, too.
As a reminder, copyright protects the expression of an idea in tangible or visible form, and not the idea itself. For more on this you can see my post on how a copyright lawsuit over the film The Light Between Oceans failed on this basis.
Trade Mark Infringement
Technically speaking – and the technicalities are very important in trade mark matters – infringement occurs when there has been an unauthorised use of a registered trade mark (that means ® and not just ‘TM’) for any goods or services which are identical to the particular goods or services which are specified on the trade mark register. In plain English, each registered trade mark must be filed into a particular class of things, known as the Nice Classification. I could trade mark “Kelsey’s Floral Magic” for use in a flower shop under Class 31, which covers horticultural and plant products. But someone else – another Kelsey, perhaps – could trade mark “Kelsey’s Floral Magic” in Class 3, which covers perfume and cosmetics.
Because consumers regularly turn to social media before making purchasing decisions, a huge part of influencer reviews and marketing content will incorporate or focus on a brand’s trade mark. From the perspective of the reviewer or influencer, this is often simply a visual way to reference the company responsible for the product or service. Whilst honest usage of a trade mark that is not in the “course of trade” will not normally constitute an infringement, if you use a registered trade mark for the purpose of deceptively confusing the public (think counterfeit goods), that very well could be a violation: the main rules are set out in section 10 of the Trade Marks Act 1994. I’ve written about trade marks quite a bit, including their implications for the Royal Family and F1 racing.
The 1842 case of Perry v Truefitt held that “a man is not to sell his own goods under the pretence that they are the goods of another man”. Modernly, English courts follow the test established in the Jif Lemon case in 1990. This holds that classic passing off occurs where there is goodwill or reputation attached to the claimant’s goods or services, which is then damaged by the defendant’s misrepresentation to the public. Importantly, the damage must be due to the erroneous belief caused by the defendant’s misrepresentation that the source of their product or services is the same as those offered by the claimant.
In essence, passing off is a very similar concept to trade mark infringement, but applies to unregistered trade marks and image rights (whereas trade mark infringement only protects registered trade marks). One of the most high-profile cases to concern passing off was the Rhianna v Topshop case (formally Fenty v Arcadia 2015), which I’ve written about here.
While there is no single judicial interpretation of what constitutes defamation, the definition most cited is that the statement complained of “tends to lower the claimant in the estimation of right-thinking members of society generally“, as stated in Sim v Stretch (1936). The claimant must show that the statement “has caused or is likely to cause serious harm”, and that no defences — for example, that the statement is true or an honestly-held opinion — apply. The court will look very carefully at the precise words used and their context, and will consider exactly how the statement has harmed the victim’s reputation. The applicable legislation in the UK is the Defamation Act 2013.
Although similar to defamation, the common law offence of malicious falsehood concerns words that cause financial harm. The claimant must show that the defendant published untrue and damaging content with a malicious motive, which specifically referred to the claimant or her property. The claimant must also show that she suffered financial loss, which could include the loss of business. An untrue and harmful review left online about a restaurant, which then directly causes the proprietor to lose reservations, might fall under this category.
Harassment can give rise to a civil claim, and in some instances, amounts to criminal behaviour (as discussed in Part 2 of this series). Generally speaking, harassment is a connected series of two or more events carried out by the same person(s) which causes the victim distress or alarm. The behaviour must be something that “a reasonable person would think amounts to harassment”, and of course includes abuse and bullying online. The remedies for civil harassment include injunctions and damages to compensate for the victim’s anxiety and financial loss, pursuant to the Protection from Harassment Act 1997.
Breach of confidence
Sometimes, publishing sensitive or secret information online can serve a public interest: consider the revelations made by Wikileaks or any number of whistleblowers. However, breaching the confidence someone places in you by sharing their private information online may breach of the common law of confidence. This is established where the information was obviously confidential and initially shared with the defendant in a confidential manner, but later disclosed by the defendant without the claimant’s authorisation. Note here that it is a breach of the defendant’s duty of confidence that gives rise to the tort, rather than the (mis)use of the private information itself, explained below. I discuss a very good and recent example of a successful breach of confidence and misuse of private information lawsuit in my post, Her Private Pain: £15,000 awarded for misuse of private information on Facebook.
Misuse of Private Information
I find the evolution of privacy law to be absolutely fascinating: I could spend all day discussing the theoretical and practical nuances (#legalgeek). But for the purposes of this post, I’ll try to keep it very straightforward without going into the academic details. Essentially, the English legal system doesn’t really recognise a right to privacy as such (see Wainwright v Home Office  UKHL 53, with The Guardian’s good commentary here). However, the Human Rights Act 1998 requires UK courts to give effect to the right of privacy found in Article 8 of the European Convention of Human Rights. This means that through its judgments over time, the courts have been obliged to “borrow” the right from the ECHR, and apply it to English cases. As a result, the traditional breach of confidence tort (mentioned above) has evolved to cover privacy.
It is commonly acknowledged that there is no “reasonable expectation of privacy” in public places such as trains, restaurants, shops, and so on. Photo by KOBUagency via Unsplash.
Under the GDPR and the Data Protection Act 2018, if information is personal data, the “data controller” is the person/company using the data in question, and they must do so in accordance with the law. This means complying with certain key data protection principles, which I’ve written in The Six Principles of Data Protection: Facebook fails. In some instances (but not all!) this includes first obtaining the data subject’s consent before using or sharing the data. However, if it is an individual who has misused someone else’s personal data, there is an exemption for “purely personal or household activity”. This makes sense: it would be impractical for individuals to start handing out privacy noticies and consent forms to each other. Nevertheless, sometimes the social media site is also considered to be a data controller, as well as the person who actually posted it. For example, if Brand X uploaded a photo of you (which is your personal data) without your permission to Instagram, both Brand X and Instagram might be considered the “data controller”. In such instances, you could potentially have a claim for a data protection law violation.
It’s very important to remember that while scintilating and controversial content can certainly drive traffic and likes, there are inherent risks to be aware of. Although the enforcement of intellectual property rights online can be difficult, copyright lawsuits and take down notices are by no means unusual. Likewise, as more people become aware of their privacy rights and protections under anti-harassment legislation, complaints in these areas are also on the rise. Before posting content online — even if it’s just a temporary Instagram story or to a very small audience of “close” friends — always consider the legal implications. And if you think that someone has committed any of the above against you, you might want to speak to a lawyer about your options.
Please note: this post focuses on English law, but the offenses will be similar in other common law jurisdictions, notably the United States and Canada (except for Quebec).
Featured photo by Mikoto.Raw via Pexels