Intellectual property (IP) law tops the list in the various fields of law as an unmitigated minefield for various legal pitfalls. Polity gains insight from two local attorneys who agree that IP law’s point of intersection with social media has presented a grey area of unchartered territory for the legal profession.

“Social-media networks are usually a hotbed for intellectual property infringements,” says IP specialist law firm Adams & Adams trademark department partner Nishan Singh. “A global infringement of IP rights, which once took weeks or even years to occur, can now happen within seconds on social-media networks.”

Singh adds that, while social media has significant advantages for companies that want to communicate effectively with potential customers, it also has added risks, of which companies need to be aware.

User-Generated Content
The birth of Web 2.0 resulted in citizen journalism and user-generated content (UGC), and the ‘millennial generation’ growing up in symbiosis with the Web.

“UGC refers to anything you, as an Internet user, put out into the online world,” says local law firm Webber Wentzel social-media specialist and attorney Emma Sadleir. “The extent to which you, as an individual, can be held liable for what you put online is becoming a huge issue internationally, because it’s such unchartered territory,” she explains.

UGC comprises anything from blogs to what you post on social-media platforms such as Facebook and Twitter, and comments posted under online articles – creating publishers out of everyone participating in online activities.

But, as Sadleir points out, not everybody who is disseminating information online, in the same way a journalist would, is familiar with the restrictions that journalists have to abide by.

The immediacy of social media does not allow for reflection, and it therefore takes little or no time before a layperson posts something on Twitter or Facebook in the heat of the moment that he or she might regret later.

“People do not know the rules, but this does not mean the rules don’t apply to them,” says Sadleir. “Everyone needs to be aware of the extent to which they are liable for the content they post online.”

Many individuals still subscribe to the myth of anonymity on the Web. This fallacy leads people to believe that real-world laws do not apply to them.

Sadleir states that all the rules governing publication apply equally online, including laws relating to hate speech, defamation, infringement of privacy and dignity, crimen injuria and the rules of IP.

She adds that, while there are no specific laws that apply to online IP, one cannot infringe on someone else’s IP rights online, in the same way that one cannot do so in the real world.

“You have to express something in material form for it to be your idea,” she says, explaining that an idea posted online, for instance in the form of a blog, is regarded as being in its material form, and is therefore copyrightable.

The difficulty arises, however, with a site like Facebook, which owns the IP rights to any information you post on it.

Further, because legal boundaries are the same online as elsewhere, what really needs to be clarified is how the law should be interpreted in the online sphere. South Africa needs a few test cases before the application of the existing laws to the online realm can be better clarified.

Trademark Infringements Online
While the benefits of social media are akin to free and immediate advertising for leading global brands, there are many legal pitfalls.

Usernames, personalised subdomain names and avatars are not verified when they are created on social-media platforms, and can create confusion about the true source of the profile.

Singh cites Starbucks Coffee Company’s Twitter profile, which had 2 586 850 followers at the time of publication, and the Coca-Cola Company’s Facebook page, which had 42 770 373 fans at the time of publication, as two examples of confusion about the verification of popular brand names online.

Singh points out that social-media networks have IP infringement policies, and that Facebook and Twitter reserve the right to remove any alleged infringing content from the network. The nature of the material generated on social media networks, however makes it difficult, if not impossible, to weed out all IP infringements.

Jurisdiction, however, poses a problem when enforcing trademark rights, owing to the global reach of social-media networks. “The proprietor of a trademark registered in South Africa, for example, can only enforce its rights in South Africa. If, for example, this proprietor submits a complaint in terms of Facebook’s trademark policy regarding an infringement by a user who is based in Russia, then, strictly speaking, access to the infringing content should be disabled only for South African users,” says Singh.

As a result, Singh advises trademark owners to take defensive steps to prevent a possible infringement from the outset.

Employee Policies
Social-media networks affect the way a company does business. A Web 2.0 generation customer is more likely to peruse comments on the Internet regarding a particular product than viewing the product in-store.

Taking this into consideration, Singh and Sadleir advise companies to enter the social-media environment with caution, as it will affect the manner in which their business is conducted.

Both attorneys recommend that companies draft an employee social-media policy, which controls what employees can post, blog or tweet under the auspices of the company; and a user policy, which controls the manner in which friends, followers, connections and fans can use the company’s profile.