The world wide web is the new marketplace – whether we are trading in goods and services or in information, we’re on one or more social media platforms interacting under a series of contracts and agreements that impose various responsibilities and obligations. Social media is the unassuming beast waiting to devour naive users. It is a minefield spread with legal bombs waiting to explode on the unfortunate user. Despite its traps, we can’t deny that it has a lot to offer for business and social interaction.

There are businesses that have successfully launched their offers and scaled their businesses using social media. Some businesses rely solely on social networks as a cost-effective way to introduce and market their products and services to customers. With an estimated 4 billion people representing 53% of the global population on social media, it is undeniable that social media is a powerful business marketing tool. But, as we know, every good thing carries some risk.

Social media networks have terms and policies to guide our behaviour on their platforms. Typically, when we open our accounts on these platforms we do not read these terms before accepting them. However, there are some legal risks inherent in the use of social media that we all should be conscious of. These are common risks of business and social interactions offline, which, while seemingly harmless can be very costly to you or your business.

Defamation

Defamation is a false written or oral statement that damages the reputation of a person. It is an attack on the reputation of a person, which adversely affects their standing in society.   Words are held to be defamatory if in their meaning they have the effect of making the person about whom they are spoken to be regarded with contempt, ridicule, fear, dislike, or odium or lower that person in the estimation of reasonable, right-thinking people in the society.  The context in which the statement is made also matters. 

Defamation exists in two forms – libel and slander. Libel is a defamatory statement expressed in a fixed medium. It usually refers to written statements such as in letters, magazines, newspapers, or any other printed matter, but it could be used to refer to a picture, sign, or electronic broadcast. Slander, on the other hand, is a defamatory statement expressed in transient form, for example, by spoken word in casual conversation.

Social media influencers have faced legal action for their posts about individuals and businesses. In 2020, F Factor diet founder, Tanya Zuckerbrot sued a social media influencer for defamatory statements she published on her social media platforms. Zuckerbrot claimed that the influencer’s “smear campaign” had caused the company losses in sales. In 2015, a Nigerian blogger was accused of publishing defamatory statements against the MD of a bank in Nigeria and spent some time in prison before his trial. You might be as lucky as Elon Musk in successfully arguing that your offending statements are simply hyperbole and not meant to be taken seriously. But, the problem with legal actions is that they are costly in time and money. If you can avoid them, it is best to do so.

Copyright Infringement

Copyright protects original works such as literary, musical, artistic, film, photography, sound recordings, music, and broadcasts fixed in a definite medium of expression. Copyright owners have the exclusive right to exploit their work and share it with the public. Copyright infringement is simply doing with a copyrighted work anything reserved for the copyright owner to do, without the permission of the owner. Things such as producing or reproducing the work, publishing the work, distributing the work to the public, or making an adaptation of the work are all exclusive rights of the copyright owner. If you post a picture that does not belong to you, you might be infringing on someone’s copyright. 

There are exceptions that allow you to use copyrighted work without the permission of the owner. In the USA those exceptions fall under a principle called fair use. Fair use uses four factors to determine whether unauthorised use is an infringement or not. The four fair use factors are:

1. The purpose and character of the use of the work such as whether it is for noncommercial or educational use.
2. The nature of the copyrighted work (for instance, whether it is factual or creative – facts cannot be copyrighted).
3. The amount and substantiality of the portion of the work used in relation to the work as a whole.
4. The effect of the use on the potential market for or value of the copyrighted work.

In Nigeria, the allowable use exceptions are specific. There are 26 allowable exceptions for using copyrighted works without the permission of the owner. They include:

1. Fair dealing for purposes of research, private use, criticism or review, or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its author, except where the work is incidentally included in a broadcast.
2. Use of the work for parody, pastiche, or caricature.
3. Inclusion of the work in a film or a broadcast of an artistic work situated in a place where it can be viewed by the public.
4. Reproduction and distribution of an artistic work that is permanently situated in a place where it can be viewed by the public.
5. Incidental inclusion of a work in a film or broadcast.
6. Limited use of not more than two excerpts in a collection for educational use if the collection has a statement that it is designed for educational use and includes an acknowledgment of the title and authorship of the work. 

Note that even where you have an excusable reason to use the work or photo without the permission of the owner, you are obliged to attribute ownership and acknowledge the owner of the work.

If you’ve been paying attention, you’ll see that American celebrities including JLo, Gigi Hadid, Kourtney Kardashian, and LeBron James have found themselves at the receiving end of copyright infringement suits from photographers whose images they used on their social media. Even though these celebrities were the subjects of the photographs that they used, the photographers were the creators and copyright owners of the photographs and any use of the photographs without their permission is arguably an infringement of their copyright. This area of law is very contentious especially when it involves photographs created by the paparazzi. The counter-argument from the subject in such cases is that the paparazzi photographer is in violation of the privacy and publicity rights of the subject of the photograph. The right of privacy is basically the right to be left alone, to not have your privacy (person, home, personal data and information, correspondence, and communications) invaded for unjustifiable reasons. The right of publicity gives you the right to control and commercially exploit your own name, image, or persona.

The bottom line is that if you are using social media for your business, content is critical to attracting and keeping eyeballs on your platform. If you are not creating your own content, you will want to be mindful of how you use content that you get from other sources.

Privacy

The right to privacy is a constitutional right in Nigeria and in the USA. As already stated, the right to privacy protects your personal data and information. Social media platforms have privacy policies designed to protect the use of your personal information, but the protection they offer is limited, which means that you are responsible for and must be mindful of the private information that you share on your social media platforms. Once you have shared any aspects of your private life on social media, the information you share cannot reasonably be protected by your right to privacy when someone else uses that information. However, your right to privacy is enforceable when someone else posts private information about you without your permission. If you go as far as doxxing someone, which means that you maliciously reveal personal identifying information of another person, a lawsuit may not be the only thing you have to worry about. You may also be looking at some jail time.

Breach of Contract

This is of special concern for social media influencers. Social media influencers promote products and services for other brands and businesses usually based on an agreement. It is important to carefully read and understand the terms of the influencer agreement to stay faithful to your obligations under the agreement. If there are any vague terms, make sure you get clarification about those terms before you agree on those terms. Some celebrity influencers are racking up huge legal bills to defend their failure to deliver on the terms of their agreements with different brands to promote their products. With companies expected to increase their social media spending over the next five years, influencers have to show seriousness and accountability by abiding by the terms of their agreements, otherwise they will spend more money than they make defending lawsuits over contract breaches.

Social media is an incredible tool for self or business promotion. It offers tools for interaction and cooperation across the world. With its utility comes risk and responsibility.

Be safe. Protect yourself and your business by reading the rules that apply to your social media accounts and instituting a social media policy for your business. A business social media policy should, at minimum, include:

• Who owns and controls the social media usernames for accounts associated with your business.
• Who has password access to your social media accounts?
• The rights of the employee or agent in charge of managing your social media accounts.
• Who has access to your customer information?
• Who has the authority to post messages to your social media accounts?
• Any protocols for addressing matters arising from your social media accounts.

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