Social media and business risk: Slander, libel, invasion of privacy, and copyright infringement

Insureon Staff.
By Insureon Staff
January 28, 2014
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An increasing number of businesses are establishing a presence on social media. With more brand awareness comes more responsibility – and a higher risk of lawsuit. Learn about the activities you should avoid on social media to protect your business and your reputation.
Coworkers gossiping.

Chances are you've heard about slander, libel, invasion of privacy, and copyright infringement before. You may even have a general idea of what these legal terms mean. But what you may not realize is how easy it is to commit one of these offenses when you use social media to market your small business.

Say, for example, you find a copyrighted image of a Pomeranian on Google and use it to generate "likes" on your pet grooming business's Facebook page. The creator of that image could sue you for copyright infringement if you don't have permission to use it.

The best way to prevent these seemingly small mistakes from becoming big legal battles is to be aware of what you can and can't do when it comes to publishing content online. Let's take a look at the advertising injury risks that could arise next time you write a tweet, post a status update, or upload a Vine.

Slander and libel

Both slander and libel are forms of defamation. The difference in in the delivery. For reference, libel refers to written defamation that hurts someone's professional reputation and slander refers to spoken defamatory statements that damage someone's professional reputation.

When using social media, you could potentially commit either of these offenses. For instance, any time you write a tweet about someone else that could be reasonably construed as negative, you risk being accused of libel. Create a Vine where you say that a competing restaurant serves cat meat instead of chicken, and that business could file a slander claim against you.

To meet the legal standards for libel or slander, though, the statement has to meet these requirements:

1. The statement must be false

If someone is going to succeed in a libel or slander lawsuit against your small business, the statement you made must be false. So your best line of defense is to prove that the statement you made was either the truth or an obvious parody. But proving a statement true or false may be harder than you think – especially when facts are not readily verifiable.

Let's say, for example, that you tweeted, "We don't support sweatshop labor, unlike [competing business's name]." Does that business actually contract with sweatshops? Is your statement just hyperbole? Can your Twitter audience tell the difference? These questions will be at the heart of any libel or slander case triggered by the post.

2. The statement must be made publicly

If there isn't an audience, there isn't a libel or slander case. That's because these offenses hinge on whether or not the defamatory statement damaged someone's reputation. If people don't know about the statement, the plaintiff can't really argue that damage was done. But if you post a derogatory statement to an audience of 10k Twitter followers or Facebook fans, there's a fair chance people read it and that it could have changed their opinion of the person or company you wrote about.

3. The statement must have caused harm to someone's professional reputation

To prove that their reputation has suffered, the plaintiff could show a decrease in sales a week after your tweet went live. They could also show that they lost their job, were demoted, were assaulted on the street, or received hate mail after the statement was made publicly.

Without these three factors, it's difficult to mount a successful libel or slander suit against your business. As a rule, avoid making false statements on social media sites, which are considered public in a court of law.

Invasion of privacy

You don't have to moonlight as a cyber hacker who leaks intimate information to the public to be accused of invading someone's privacy. "Invasion of privacy" refers to the laws prohibiting the intrusion into someone's personal life without just cause. Your business could easily run into this kind of snafu on social media sites if you post an image of a celebrity and imply that they endorse your services or products when they don't. The celebrity's lawyers might be drafting a complaint before you can say, “As seen on TV.”

Here some other examples of situations that trigger invasion of privacy suits:

Public disclosure of private and embarrassing facts

Certain personal details about people are simply off-limits to the public – regardless of how factual they may be. For example, you can't post a status update about someone else's medical condition unless that information already existed in the public domain.

Misappropriation of someone's name or likeness

You can be sued for invasion of privacy if you use a person's name, photograph, likeness, voice, or endorsement to promote the sale of your product or service without their consent. Say, for instance, you use an unauthorized photo of a public figure on your e-commerce website. They could turn around and sue you for suggesting that they endorse your products when in reality they have no affiliation. To avoid these lawsuits, be sure your models or past customers sign a consent form before you use their images, names, or words to promote your products or services.

Presenting someone in a "false light"

False light claims can arise when you portray someone (in words or pictures) as something he or she is not. The most common instance of this offense is when a person or company publishes a picture of someone else with a misleading caption beneath it. Though this offense may sound similar to libel, false light lawsuits differ in that the plaintiff doesn't need to prove injury for the claim to be valid. They only need to show that the statement was highly offensive.

Copyright infringement

Copyright infringement refers to the use, distribution, display, or derivation of copyrighted work without the creator's permission. Copyrighted work usually includes music, art, photography, film, and writing.

So if you post someone else's graphic design and claim it as your own on your business's social media page, you could be sued for damages. The exception would be if the image exists in the public domain (i.e., is available to the whole public and is not subject to copyright laws).

For a copyright infringement claim to succeed in court, the following elements must be in play:

1. The plaintiff holds a valid copyright on the work in question

This doesn't necessarily mean that they must have the copyright registered – just that they can verify that they are the creator of the work.

2. The alleged infringer had access to the copyrighted material

If the work is available on the Internet, this is easy enough to prove. The plaintiff's attorneys would simply have to show the work could be found on a website.

3. The infringement doesn't meet any copyright exceptions

"Fair use" is the most common copyright exception. Fair use allows an unauthorized party to use someone's copyrighted work in certain circumstances. Examples of fair use may include commentary, criticism, parody, news reporting, research, teaching, library archiving, and scholarship.

Before posting images that aren't your own on your social media pages, ensure that they aren't subject to copyright.

What can your business do to avoid advertising injuries arising from social media?

Make sure you check and double-check that your post could not be construed as offensive before you ever publish it on social media sites. When writing publicly about others, make sure what you say is true. Don't use others' images, endorsements, or names without their consent. Don't use copyrighted images or content if you aren't authorized. Be respectful and conscientious to everyone you interact with online. Carry adequate small business insurance (such as general liability insurance) to protect your business in case you are ever sued for libel, slander, privacy invasion, or copyright infringement.

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