Things That Get Web Users Sued – A Cautionary Tale

In our modern internet connected society,  countless  people have  left their mark somewhere in the digital world.  It is now mainstream to post photos on photo sharing sites,  write comments and post photos on social media sites, compose  blog posts,  leave comments, and write reviews of a products or services.  It would also be a fair guess that a good majority of us have uploaded  a video on a video site, or posted a photo somewhere on the internet. Go to any concert and about half the people have their smart phones out taking video of the performance, and many of those videos will end up posted on  a social media or video sharing web site. Business owners are writing blogs and commenting on their competitors, consumers are writing reviews of businesses they patronized,  or products they purchased.

People begin to think that they can write anything about anyone, post and copy photos, upload videos, and do it with immunity. The internet is somewhat of a free for all.  However bloggers and others are not the press, and do not have the protections afforded the press. Further most people do not understand fair and balanced reporting, meaning that if you are going to write about someone, you should contact that person and give them an opportunity to reply or rebut what you are about to write, and you post their side of the story.

People post copious amounts of comments, photos, and videos and then tend to forget about them.  Photos, blogs, and social media posts may just sit there for years, forgotton by those that posted them,  viewed by no one, except for perhaps some cunning lawyers trolling the internet . What for you might ask?

Here are 8 ways that you can get sued for your online activities including blogging, posting on social media, posting videos, and running web sites.

(1) Copyright Infringemnet

(2) Copyrighted Music

(3) Trademark Infringement

(4) Tortious Interference

(5) Product Disparagement

(6) Defamation

(7) Right of Publicity

(8) Deceptive and Unfair Trade Practices

COPYRIGHT  INFRINGEMENT

Millions of people that engage daily in social media, blogging, photo sites, and operating web sites, may be making  a common, but costly mistake, by posting photographs that which they believe are free for the taking, only to find out that they are being sued for copyright infringement.

If you find photographs on the internet beware that these photos are ok to look at, but if you copy them, share them, or post them on any social media site, blog or web site, you may be facing a copyright lawsuit that could cost you thousands.  Just because you see a photo on a web site, don’t make the mistake of thinking you have the right to publish that photo on your social media site. Most photo sharing sites say that if you load something into their site you are claiming that you have a legal right to that picture. And if the owner of that photo comes after the web site company, you will be the responsible party. If you upload, pin, repin, or post a photo, whether your realize it or not, you're saying you have the right to that photo. Most social media and photo or video sharing sites,  have adopted the procedures set forth in the Digital Millennium Copyright Act of 1998, and agree to expeditiously respond and remove any material that is alleged to be copyrighted. This offers protection to the web site, but not to users that have posted, pinned, or uploaded copyrighted material, and offers a false sense of security to users. Here is a link to another writers perspective on this topic http://greekgeek.hubpages.com/hub/Is-Pinterest-a-Haven-for-Copyright-Violations

When a photographer takes a photograph, it is the property of the photographer from that instant, and remains so until it is licensed or sold. It does not matter if the photographer files for a copy right with the copyright office or not, he still owns the photo and you can still be sued if you use the photo even if it is not officially copyrighted.

Here are some common misconceptions about Fair Use, the following are NOT defenses to copy right infringement:

if you link back to the source and list the photographer's name

if the picture is not full-sized (only thumbnail size is okay)

if you did it innocently

if your site is non-commercial and you made no money from the use of the photo

if you didn't claim the photo was yours

if you've added commentary in addition to having the pic in the post

if the picture is embedded and not saved on your server

if you have a disclaimer on your site.

if you immediately take down a pic if someone sends you a DMCA notice (you do have to take it down, but it doesn't absolve you.)

None of the above will protect you from a copyright infringement lawsuit.   You are violating copyright if you do not have express permission from the copyright holder.

So what can you do to protect yourself from being sued for copy right infringemnt?  Do some serious house cleaning. Go through all of your social media, blogs, web sites, and other internet sites and remove all photographs that you have posted unless either (1) you took the picture, or (2) you have a license to use the photograph.  This will go a long way toward protecting you from being sued for copyright infringement, however not totally.  You might be surprised to know that  archives exist of everything on the internet and a photographer can still see a photograph on your social media, blog or web site that was deleted and you can be sued for copyright infringement going back three years. However, if you have already been sued or if the possiblity of litigation arises (meaning you might be sued) then you have a duty to preserve evidence and can not and should not conceal or destroy evidence.

COPYRIGHTED MUSIC

Here is another area ripe for lawsuits.  Millions of people routinely take a video at a live concert (known as a boot leg video) then post the video on a social media or video sharing site.  The problem here is that you had no legal right to shoot the video or post the video to a social media or video site. Everyone probably knows this deep down, because at most concerts they announce that "video taping is prohibited", and video sites warn you that you must own the content of all videos you post.  You may have a ticking time bomb in your video uploads and not even know it.  Recently Prince the entertainer  sued several fans for copyright infringement (see this link http://music-mix.ew.com/2014/01/27/prince-suing-facebook-fans/

Here is another area ripe for copyright lawsuits, "cover band songs" .  If you are a musician and play cover songs, you might be tempted to video tape your band and post the songs to social media or video sharing sites, to promote your band, get gigs, make money, or just have fun.  However if you have not obtained a license to publicly perform a song, or you have not paid royalties to the song writer, you may be subject to a copyright lawsuit, or at the very least a cease and desist letter from a lawyer.

What is the best way to protect yourself from the music industry lawyers that want to sue you? There are a couple things you can do. First, only upload original songs that you wrote, produced and played. Second, obey the warnings at concerts and do not video tape musical acts, and if you are tempted to video a concert, DO NOT upload the video footage to social media or video sharing sites.

TRADEMARK INFRINGEMENT

Perhaps you started a new business and want to make your business logo, web site, or other advertising look a whole lot like a competitor so you can take advantage of customers possibly contacting you as a result of confusion with your well established competitor.  Perhaps you even hire an advertising agency or web developer to make your logos and advertising copy.

In a trademark case, the party claiming infringement  has the burden of proving that the defendant’s  use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff must show that it has developed a protectable trademark right in a trademark. The plaintiff also  show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff

To determine whether the use of a mark has the requisite "likelihood of confusion," courts have generally looked at the following eight factors:

1.the similarity in the overall impression created by the two marks (including the marks' look, phonetic similarities, and underlying meanings);

2.the similarities of the goods and services involved (including an examination of the marketing channels for the goods);

3.the strength of the plaintiff's mark;

4.any evidence of actual confusion by consumers;

5.the intent of the defendant in adopting its mark;

6.the physical proximity of the goods in the retail marketplace;

7.the degree of care likely to be exercised by the consumer; and

8.the likelihood of expansion of the product lines.

You can avoid trademark lawsuits by making sure that your mark, advertisement, product name, graphics, etc, are not confusingly similar to other business marks. It might be tempting to copy or create an logo or advertisement that is similar to some other business logo or advertisement in the hopes of benefitting from the other business advertising, however this is exactly the type of "confusion" that trademark lawsuits are intended to protect against.  Here is a link to Cornell Law for more on trademark infringement. http://www.law.cornell.edu/wex/trademark_infringement

TORTIOUS INTERFERENCE

Tortious Interference is defined as  interfering with someone’s ability to do business. This type of claim can arise in the context of social media when you write a review of a business  online. Again, millions of people write reviews every day about their experiences with various businesses online, not knowing that a time bomb may be out there waiting for a lawyer to find it and sue you.

Legally,tortious interference with business relationships occurs where the tortfeasor acts to prevent the plaintiff from successfully establishing or maintaining business relationships. This tort may occur when a first party's conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred. Such conduct is termed tortious interference with prospective business relations, expectations, or advantage or with prospective economic advantage. Claims for business interference can arise when for example, you post a review on a social media site about a business.  If you post something like, "do not do business with xyz company they are a rip off "  you may be subject to a lawsuit, versus if you posted the following safer comment:  " I was very dissatisfied with the service of XYZ company"  To avoid losing a suit for tortious interference, be careful what you say and how you say it online.

PRODUCT DISPARAGEMENT

Product disparagement and the slander of title,  are claims that occur when a person "makes a false statement about the title to goods or the quality of goods being offered for sale by a person or corporation, and as a result, another person or persons refrain from dealing with the that person or corporation.

Examples include writing  a review on a social media site, a diatribe  on Facebook, or a blog post.  Product disparagement is very real risk for bloggers.  Those engaged in writing  product reviews may be subject to lawsuits by business owners  who will sue in order to try and get negative stuff pulled from the web, even if they don’t have grounds for a winning case. This type of case is also known as a SLAPPt (strategic lawsuit against public participation) but regardless of whether the suit has merit or not, you still have to hire a lawyer and deal with it.

A safe way to avoid this type of suit is simply do not write product reviews on line. Leave that up to professionals like Consumer Reports.

DEFAMATION

There are different rules for defamation depending on whether the person being defamed is a public or a private individual. In today’s world  defamation may be the broadest category of potential legal liability for bloggers and website owners.

Legally defamation is : Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Defamation includes both written statements (known as libel), spoken statements (called slander), and videos, graphics or photographs.

Defamation is an area that can get bloggers in trouble.  To prove libel,  the plaintiff has to prove that the blogger published a false statement of fact about the plaintiff, that harmed the plaintiff's reputation."Published" means that at least one other person may have read the blog. A "false statement of fact" is a statement about the plaintiff that is not true.  Therefore truth is the best defense against libel. An opinion is also a defense against libel, however  the difference between an opinion and a statement of fact can be hard to prove.  Context is very important in a  defamation suit.  Inserting the words "in my opinion" in front of a statement of fact doesn't necessarily make it an opinion.

Defamation is in the mind of the reader and may hinge upon  the outcome or harm to the plaintiff.  For example  you posted something you thought was endearing, funny, cute, and inoffensive. But if the outcome is that a  person is harmed as a result, it can be defamatory. 

RIGHT OF PUBLICITY

So you shoot some photos of a celebrity, or copy a photo of a celebrity and use it in your web site or blog, perhaps to make people think you are known or endorsed by that celebrity. Or what if you take pictures of random people and use them in your web site or advertising. Whats the harm?

The right of publicity, often called personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the Right of Publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).

Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.

The right of publicity may come back to haunt you if you post  photos you take, with no regard to people in the photo, without their permission, or use the photo in a way that suggests that the  person (or celebrity) knows you, or endorses you or your business, or portrays the person or celebrity in a negative manner.

In a publicity rights case the issue to decide is whether a significant section of the public would be misled into believing (incorrectly) that a commercial arrangement had been concluded between a plaintiff and a defendant under which the plaintiff agreed to the advertising involving the image or reputation of a famous person. The actionable misrepresentation requires a suggestion that the plaintiff has endorsed or licensed the defendant's products, or somehow can exercise control over those products.

The best defense is to get permission before you publish photos of people. While it is not against the law to take photograps of celebrities,  depending on the context of how you use the photo without their permission,  you may be sued by the celebrity for using their photo. Remember you are not the press and you don’t have the protections afforded to the press.

The same goes for taking photos of non celebrities, every day people and publishing them without their permission.  The best defense is to get permission before you publish photos, or better  yet, just publish photos of people you know and love and who wont object to your use of their likeness. 

DECEPTIVE AND UNFAIR TRADE PRACTICES

This is an area of law that may be little known to most business owners, and can be a problem for bloggers and web site owners.  If you decide to post information about a competitor on your blog or web site, and that information is derogatory, or critical of your competitor, that can be treated as unfair competition.  In Florida there is a statute known as FUDPTA, or the Florida Unfair and Deceptive Trade Practices Act.

The Florida Deceptive and Unfair Trade Practices Act, contained in Florida Statute Section 501.201, is designed to protect consumers from unfair methods of competition and unconscionable trade practice. The law is consistent with federal policies governing consumer protection.  The purposes of the Act are:

•To simplify, clarify, and modernize the law governing consumer protection, unfair methods of competition, and unconscionable, deceptive, and unfair trade practices.

•To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.

•To make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.

The Act covers such actions as making false advertising claims about a product, trade libel (making slanderous claims about another company’s product), deceptive marketing and unfair trade practices, such as attempting to eliminate competitors.

A claim brought under Florida’s Deceptive and Unfair Trade Practices Act has three elements:

•A deceptive or unfair trade practice

•Causation

•Actual damages

This statute can trip up bloggers and web site owners if they decide to start writing negative comments online about a competitor in the hopes of increasing their own business, they may end up on the other side of a lawsuit brought by the business they were writing about. As a general rule, it is best not to write about your competitors, rather, write about all the benefits of your product or service, and let the customers write the reviews.  

CONCLUSION

If any of the above has scared you, opened your eyes, or made you think about what you are doing in your every day life, then my time in writing this was not wasted.  The chances of any individual being sued for any of the above is not that great, however in this highly litigious world I believe we will be seeing more and more of this type of lawsuit being filed, and unsuspecting individuals may be caught off guard with a lawsuit out of left field that they were not expecting. You may have ticking time bombs hiding in your social media in the form of copyright infringements, trademark infringements, defamation, tortious interference, and right of publicity and you may not even know it.  With all the various forms of social media, we some times forget what we have posted, what we have put out there for the world to read.  Now would be a good time to take stock of your online world, review all your social media, blogs, video sites, and web sites, and perhaps remove things that may be just waiting to come back and haunt you with a lawsuit.  A few good questions to ask yourself are; (1)  is this post really necessary (2)  is this product review helping me or anyone else for that matter (3) is anyone really looking at this post, or video or comment (4) what do I have to gain by leaving a comment, post or video on some social media site (5) will anyone really care if I remove this post, photo, or video?. After you ask yourself these questions, then ask yourself, is this post, video, photo, or comment worth being sued over? The answer is probably a resounding no, and you know what you have to do. However if you are in litigation (have been sued) or there is the possibility of litigation (you know you are about to be sued), then you have an obligation to preserve evidence, and you should not at that point remove anything from your social media as that could be construed as destroying evidence. 

For more information or a free consultation on your legal issue contact The Law Offices of Charles D. Scott PLLC, your injury law and family law attorneys, at 727-300-4878. http://www.yourstpetelawyers.com

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