What is Social Media?
Social media has become an integral part of modern communication and has revolutionized the way people communicate, connect, and engage with businesses and organizations. It is a technological platform that enables individuals to share information through written words, images, videos, and music. Social media has become popular among people of all ages, particularly youth, as it provides a means for expressing their opinions and discussing issues.
Various types of social media platforms are available, including social networking sites like Facebook, Instagram, and Twitter, as well as blogs, vlogs, and social news. These platforms have made social media easily accessible to people. However, social media, like any other technology, has both advantages and disadvantages. One of the most significant advantages of social media is that it provides up-to-date information. Social media platforms such as Twitter and Facebook are used to instantly share news and information.
Banking, customer service, and online shopping have all become more accessible as a result of social media. With the rise of social media, businesses can now provide services and support to their customers more quickly and efficiently, improving customer experience and satisfaction.
What is Social Media Marketing?
Social media marketing is the use of social media platforms to connect with your audience to build your brand, increase sales, and drive website traffic. This involves publishing great content on your social media profiles, listening to and engaging your followers, analyzing your results, and running social media advertisements.
The major social media platforms (at the moment) are Facebook, Instagram, Twitter, LinkedIn,Pinterest, YouTube, and Snapchat.
Nowadays, businesses use social media in a myriad of different ways. For example, a business that is concerned about what people are saying about its brand would monitor social media conversations and response to relevant mentions (social media listening and engagement). A business that wants to understand how it’s performing on social media would analyze its reach, engagement, and sales on social media with an analytics tool (social media analytics). A business that wants to reach a specific set of audience at scale would run highly-targeted social media ads (social media advertising). As a whole, these are often also known as social media management.
LEGAL IMPLICATIONS OF SOCIAL MEDIA MARKETING:
1. IP Infringement
Intellectual property laws govern the use of trademarks and copyrights. Copyright relates to the authorship of original works like art, books, music, and more.
Social media sites allow users and companies to post content, including content that may be copyrighted or trademarked. Posting can be performed not only by employees of organizations using social media, but also fans and visitors to a company’s social media site. Organizations may face infringement claims (direct or based on vicarious liability) due to copyrighted or trademarked materials being posted by them or by third parties.
It's easy to cut and paste content from sites on the internet. But using content from another site can result in criminal and civil liability.
Consequently, it's essential to have policies governing your business' online content publication. You should have someone review posts and messages for legal compliance before publication. When using third-party content, you should attribute the content to that party to avoid any copy infringement. A social media lawyer can help draft appropriate guidelines.
2. Disparagement and Defamation
Social media environments provide a forum for defamatory statements to be made about individuals, and disparaging remarks to be made about companies' products and services. Organizations with overzealous employees attempting to get a leg up on competitors may post comments or remarks that may not be fully accurate or true about an individual or a competitor’s products or services. This could lead to a potential lawsuit and liability. Social media sites and blogs that allow comments may also involve such statements made by third parties over which the organization has little to no control.
First Amendment rights do not protect defamatory statements. Such statements typically fall under two categories:
Libel: Tangible, written statements
Slander: Spoken words or gestures
The criteria for either is that the statement was objectively false, seen or heard by a third party, and caused financial injury. The comment is also unprivileged by law.
It's always best to show caution when commenting about a third party. Social media platforms make those comments immediately viewable by millions of people and can quickly create a legal issue for you. Note that sharing or liking another person or business' defamatory comment can present a legal issue for you. And if you make an ill-advised comment while at work, you potentially put yourself and your employer at risk.
3. Privacy & Confidentiality
Privacy laws govern the collection, use, disclosure, and storage of personal information. Moreover, you must inform individuals that you are collecting such information. And you cannot disclose that information unless it's for specific purposes. It's common to see businesses to require a signed agreement to use your NIL (Name, Image, and Likeness) in any social media content produced by the employer.
For many companies the Holy Grail of social media is in depth and detailed personal information about their current and would-be customers. Social media provides a platform for much more interactive and intimate communications between companies and their customers. In turn companies seek to use this knowledge to sell their products and services back to these customers (in a way that does not erode the trust relationship that is often gained in the social media context). Social media platforms enable the gathering of information, including personal information, in ways that were unimaginable only a few years back. Companies leveraging social media, depending on the platform, can gain access to this personal information. This raises a host of privacy concerns that could increase legal risk. Most social media sites have terms and conditions that may result in legal liability if an organization’s collection or use of personal information violates those terms.
4. Misleading Claims
It's best to substantiate any claims made on social media to avoid legal issues. Consumer protection laws prohibit businesses from making false, deceptive, and misleading claims about products or services.
The same goes for reviews of a company or service. It's common practice for companies to capture reviews through social media channels. But, of course, those reviews need to be legitimate and not falsified or misleading. The same holds for endorsements. Google and other search engines are getting better daily at identifying fake reviews, and will not hesitate to penalize company websites.
5. Business Contracts
Businesses of all sizes execute contracts, including non-disclosure agreements, confidentiality agreements, and non-compete agreements. Interestingly, On January 5, 2023, the Federal Trade Commission (FTC) proposed a rule to ban non-compete clauses. This has since been approved and has retroactively negated many of these clauses. That being said, social media communications can set the stage for breaches of the formerly stated contracts.
For example, employees must be aware of business contracts with non-disclosure agreements. Imparting essential knowledge detailed in such agreements can lead to a lawsuit. Here's another example, let's say you recently hired an employee. A recently hired employee has a non-compete agreement from their former employer preventing him from contacting former clients. The employee then changes his status on LinkedIn, which sends out an update to clients, including some former clients. In the past, this scenario could open the door for a suit claiming a breach of contract against the former employee.
6. Information Security Legal Risk
Organizations that employ social media face several information security legal issues. These legal risks can be broken down into three broad categories:
(1) potential liability due to a breach of the organization’s security as the result of an attack originating through the use of social media;
(2) potential legal risk associated with social engineering and spoofing attacks against users or “fans” of an organization’s social media presence, persona or application; and
(3) legal consequences of leakage of third party confidential information as a result of social media use.
Companies may also face liability for failing to detect and notify social media users of scams associated with the company’s name or site. If an organization becomes aware of a spoofed fan page that looks like its own, or a criminal disseminating a malware-infested social application that looks like it is sponsored by the organization, legal repercussions could arise. In the email context we are already aware of lawsuits involving phishing that allege that the defendant should have been aware of scam emails sent to their customers, and should have warned those customers of the scam.
Finally, social media sites and the activities of multiple users for or on behalf of an organization could result in information leakage. If that leakage involves confidential information or trade secrets of an organization’s customer, or perhaps certain financial disclosures in violation of securities laws, liability could arise. The risk of confidential information leakage was recently on display involving the use of LinkedIn. This risk can also be indirect in its nature, and there are several social media corporate intelligence companies that will data mine and aggregate information about competitors in order to discover leaked secrets, plans and trends.
7. Advertising Law
Organizations that use social media to promote their products and services should also be concerned about advertising laws. For example, some social media activities may amount to a contest or sweepstakes and may need to have appropriate disclaimers and notices. In addition, for social media sites that allow users to rate products or services, an employee that “rates up” the products or services of his or her company may violate advertising laws concerning testimonials and endorsements.
8. Electronic Discovery and Evidence
Social networks are brimming with social interactions and information generated by and about those interactions. That information may be highly relevant in a litigation context, and the parties in a litigation may seek to obtain this information via discovery or subpoena. Questions arise as to whether obtaining this information for use in court is permissible in light of potential privacy concerns. On the flipside, when litigation begins, how should lawyers advise their clients concerning the preservation of information on social media sites, and what kind of problems may arise if a litigant fails to preserve social media information.
Relevant Case Laws:
Shreya Singhal v. Union of India
The case of Shreya Singhal v. Union of India addresses the topic of Internet free speech and expression. The case began with a petition submitted by Shreya Singhal, a law student, who questioned the constitutionality of Section 66A of the Information Technology Act of 2000.
Section 66A of the Information Technology Act of 2000 authorized authorities to arrest anybody who posted or communicated insulting material on the internet. The clause was highly criticized for its confusing and imprecise phrasing, as well as for being utilized to restrict free speech and expression. Shreya Singhal's appeal challenged the section's legality, claiming that it infringed on the basic right to free expression provided by Article 19(1)(a) of the Indian Constitution.
A two-judge panel of the Supreme Court of India heard the case and ruled that Section 66A of the Information Technology Act, 2000, was unconstitutional and infringed the basic right to free speech and expression. The court ruled that the clause was too wide and imprecise and that it allowed the police too much freedom to interpret and implement it, resulting in arbitrary arrests and harassment of innocent people.
The court's ruling in the Shreya Singhal case was noteworthy in that it reaffirmed the value of the free expression and expression in a democratic society, as well as the necessity to balance it against legitimate governmental objectives. The court acknowledged that the internet and social media have become powerful instruments for individuals to communicate their thoughts and beliefs and that any attempt to restrict them must be studied carefully to ensure that they do not infringe citizens' basic rights.
The Shreya Singhal case established a significant precedent in Indian law, leading to the recognition of online free speech and expression as a fundamental right. The decision has been helpful in limiting the misuse of power by law enforcement authorities and in protecting the constitutional rights of citizens.
Arnab ManoranjanGoswami v. State of Maharashtra
Arnab ManoranjanGoswami v. State of Maharashtra is a high-profile lawsuit that has gotten a lot of attention in India. Arnab Goswami is a notable journalist and the creator of Republic TV, a popular news station in India. In November 2020, he was detained by Maharashtra police on suspicion of aiding suicide in connection with the deaths of AnvayNaik, an interior designer, and his mother. Goswami filed a petition before India's Supreme Court, arguing that his detention was politically motivated and violated his fundamental rights, particularly his right to free speech and expression.
He claimed that the case against him was based on flimsy evidence and that he was being targeted because of his critical coverage of the Maharashtra government. The Supreme Court of India granted temporary release to Goswami, saying that the state had breached his right to liberty by arresting him without due process. The court also chastised the Maharashtra police for their detention of Goswami, claiming that it was not in conformity with the law.
The Arnab Goswami issue has raised serious concerns about press freedom in India and the government's role in media regulation. It has sparked heated debate in the media, prompting requests for increased protection of journalists' rights as well as clearer limits on the use of sedition laws and other legal instruments that can be used to restrict free expression. The case has also highlighted tensions between the media and the administration, with many critics claiming that Goswami's detention reflected the government's hostility towards critical reporting. Others have also chastised Goswami for perceived sensationalism and his participation in supporting a particular political agenda.
Ultimately, the Arnab Goswami case emphasizes the significance of free speech and expression, especially in the context of a dynamic and diversified media ecosystem. It emphasizes the importance of increased accountability and transparency in the use of law restrictions that might be used to limit free expression, as well as the importance of a strong and independent judiciary to preserve individuals' basic rights.
THE DIGITAL PERSONAL DATA PROTECTION ACT, 2023 (DPDP)
On 11 August 2023, the President of India formally enacted the “Digital Personal Data Protection Bill” following its approval from both houses of the Indian Parliament. This enactment establishes a dedicated legal framework in India, marking a significant milestone—India’s first-ever privacy Act aimed at safeguarding the personal data of citizens. It spotlights the importance of the Data Protection Board of India, its key provisions, and the rights and duties of organisations and individuals.
In this fast-paced digital landscape, the Digital Personal Data Protection Act, 2023, is a momentous stride in safeguarding individual privacy rights and promoting responsible data management practices. This groundbreaking legislation acknowledges the ever-growing significance of personal data protection and aims to strike a delicate balance between individual rights and an organisation's legitimate data-processing needs.
The primary purpose of the Act is to regulate the processing of digital personal data and respect individuals' right to protect their data while recognising the necessity of processing and using such data for lawful purposes. The language employed in the Act is simple and straightforward, ensuring easy comprehension for all. Moreover, the Act aims to establish a comprehensive legal framework to govern digital personal data protection in India.
The Act’s provisions cover personal data in digital format, including both data that originates digitally, and non-digital data that is subsequently digitised. The provision applies to data processing within and outside India, if it relates to the offering of goods or services to individuals within India.
The Act places the responsibility on Data Fiduciaries to comply with the law. It necessitates them to prioritise Data Principal rights and mandates the implementation of appropriate technical and organisational measures to safeguard these rights. It is imperative for the CFO office to strike a balance between compliance costs and the organisational obligations as Data Fiduciaries. This is essential to mitigate the risks of incurring substantial penalties in case of a failure to comply.
BIBLIOGRAPHY
Written By,
IshikaFatnani,
Intern, Chanchlani Law World
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