Category Archives: Europe

The EU Just Expanded Copyright Infringement In A Really Confusing Way

It's all about the links.

It’s all about the links.

Nudity + Bad Content Laws = Confusion.   While not as popular as the equation E=MC², N+BCL=C is a useful equation for describing a recent decision out of the European Union dealing with copyright and social media.

Copyright and social media are frenemies at best.  On the friend side, social media has given authors powerful ways of reaching audiences that were never previously possible.  Many people make decent livings based on creating cartoons, movies, or audio files that are distributed via social media.  On the enemy side, social media has wrecked havoc with authors’ abilities to control their creative works–the entire purpose of copyright.  Find any image on the Internet, right click on it, and save the image.  Odds are you just infringed on someone’s copyright.  But whose copyright?  And did you actually infringe it or is the author fine with you saving the image?  What if you re-use that image on a Facebook post or blog article?

There are numerous issues with the (lack of) progression in our copyright laws and the rapid development of technology which easily infringes copyrights.  One set of those issues deals with the ability to link to other content on social media.  You may post a link on a blog post or on Facebook that can take a reader from your content directly to other content.  What happens when the content you link violates someone’s copyright?  The issue just became more complicated because of a recent decision by the Court of Justice of the European Union, the top appellate court for the EU.  To understand the implications of that case, let’s dive into the details.

First, the good news: the case deals with nudity as I mentioned at the top.  That’s usually good to keep people interested.  In this case, the nudity at question were naked photos of TV personality Britt Dekker which were taken for publication in the Dutch version of Playboy.  Eleven of those photos leaked prior to publication by being placed on a file hosting site.

GeenStijl (Dutch for “No Style”) is a website that posts stories about current events and scantily clad or naked women in varying ratios throughout the week.  The day that the photos were leaked online, GreenStijl received an email with a link to the photos.  Also on that day, Dutch Playboy, aware that the photos were online, attempted to take down the photos on the file-hosting site but also reached out to GeenStijl asking them not to post the photos.

GeenStijl did not respond to the request.  Instead, the next day, GeenStijl published an article that included one of the leaked photos.  They also included a link at the end of the article which directed users to the file-hosting site that had all of the photos.  Dutch Playboy again wrote GeenStijl asking the article to be taken down.  GeenStijl did not respond.  But the web site that hosted the eleven leaked photos did respond to Dutch Playboy’s request and the photos were removed from that site.

One week later, Dutch Playboy sent another letter to GeenStijl demanding their original article be taken down.  GeenStijl did not take down the original article, instead they published a new article talking about the legal dispute they now had with Dutch Playboy.  The end of this second article contained a new link to another website that had the leaked photos.  Dutch Playboy contacted the website hosting the leaked photos linked in the second article and that website also removed the leaked photos.

Ten days later, GeenStijl published another article with yet another link to a website hosting the leaked photos.  Users of the GeenStijl site filled the comments section of the article with other links to the leaked photos on various hosting services.

All three of these articles were published prior to the actual issue of Dutch Playboy for which the photos were commissioned.  Dutch Playboy brought a lawsuit against GeenStijl regarding these links that made their way through the court system before finally landing at the top appellate court.

Let’s get one thing clear: GeenStijl was a jerk in this case.  That’s not to say they were, at the time and under their understanding, breaking the law.  But they were definitely provoking a publication through their pattern of activities.  And that’s okay–cases dealing with content and speech are often filled with jerks who help bush the boundary and test the limits of the legal system so that the rest of us non-jerks benefit from a greater understanding.  But that may be important in understanding that the courts in this case may not have been inclined to help out a website acting like a jerk.  Unfortunately, their decision may have punished a jerk while also muddying the waters for all legitimate social media users.

By the time the case reached the highest court there was a set of three questions that all dealt with whether GeenStijl had “communicated to the public” (or what we in the US call “distribution” which is one of the protections afforded an author of copyrighted material) by virtue of posting links to protected content.  And here the court ultimately answered the questions with a rather convoluted statement (to be fair, it might be simpler in the original Dutch) which I will attempt to untangle.  By the way, it’s important to note the court didn’t decide the case–rather they were asked to answer some questions and now the answers will be used to resolve the case.  They said it will be hard for GeenStijl to overcome this test given the facts at hand, but another court will have to look at all the details.  Here’s what the court said:

  • To determine if a link to protected content is a communication to the public you must first determine if the link was posted by an individual.
  • If the link was posted by an individual, but they did not post the link for financial gain, and they had no reason to know the linked content was protected, then it is not a communication to the public
  • If the link was posted by an individual for financial gain, or by a non-individual (such as a website), then there will be a presumption that the link was known to point to protected content
  • This presumption of knowledge about the protected nature of the content can be rebutted

Like I said, this probably makes more sense in Dutch.  But for us English speakers, there are two really big problems for this kind of test to determine if a mere link to protected content is a legal violation.

Problem 1: The ruling sets up different tests depending on whether the links were made “with pursuit of financial gain.”

Copyright protections are supposed to protect authors so that we encourage people to become authors.  So it makes sense to stop people posting copyrighted content without the permission of the author because that could financially injure them.  If we are at all concerned about the next level of activity, other sites linking to the unauthorized posting of copyrighted content, then the motivation behind those links should be absolutely irrelevant.

The Court’s test here creates two different tests–one which applies to individuals who are posting links online but not for financial gain, other test for anyone posting for financial gain (which seems to include all websites or activity by more than one individual).  These tests shouldn’t be relevant if we’re concerned with protecting the author.

Consider this hypothetical.  I make a movie.  It’s a really good movie with time travel and robots and aliens and a hilarious road trip in a spaceship and then there’s a big fight with a giant space-Octopus.  I’m in the process of taking this movie to various festivals, maybe seeing if I can sell it to Netflix or some other distribution channel.  Someone working at one of the festivals takes my movie and makes a copy, then posting it on YouTube.  This person posted it on their own site and didn’t give it a descriptive title so nobody watches it.  Then a website stumbles across the YouTube movie and posts it on their website under Movie You Must Watch Of The Day.  A million people watch the movie and now all my interested distributors don’t want to talk to me because my movie is available for free.

At this point, I wouldn’t care one iota whether that website that posted the link is a commercial venture, newspaper, educational institution, or message forum.  Their motivation for posting the link is irrelevant–I have been damaged.  Granted, I’m also upset at the person who posted it in on YouTube in the first place, but if we are going to extend those protections to people who link to protected content why should we even consider their motivation?  Setting up a separate test for sites based on whether they pursue financial gain (because in this day and age more sites pursue a profit than actually achieve it) doesn’t make sense from the perspective of preserving the incentive for authors.

Problem 2: The court presumes that websites pursuing financial gain have magical knowledge

The court’s test says that a post made for commercial gain will be presumed to know that content they are linking to is authorized or unauthorized.  This presumption doesn’t make sense.  From the court’s perspective, such a site should know that content is protected and should therefore have better judgement in posting links because they will know if that linked content was authorized or not.

But here’s the thing: despite certain US Supreme Court decisions hinting otherwise there is no such thing as a corporation that can exercise judgment.  Corporations, websites, any organization is composed of people.  So if one person can’t be presumed to know whether any piece of content on the Internet is properly authorized, how would five people running a website have that breadth of knowledge?  Or even a hundred?  Or a thousand?  Certainly larger organizations with more resources might identify protected content and be able to ascertain if the posting was authorized, whether by virtue of more eyeballs seeing the content or being able to afford some tools to help it identify content, but none of those are perfect.  Trying to substitute the pursuit of profit with having enough resources to presume knowledge of content status just doesn’t make sense in our digital world.

US law on this issue is similar but has an important difference: a website could be liable for linking to unauthorized content if it knew the content was unauthorized but there is no presumption of that knowledge simply because the website is trying to make a profit.  That’s the key distinction.

Also, when the EU court made this a presumption that can be rebutted, they left open a huge loophole.  Let me give you a psychic prediction on approximately 100% of the cases involving this test moving forward: the website that posted the links will say they didn’t know the content was posted without authority in an attempt to rebut the presumption.  That’s 100%, plus or minus 0%.  And the only websites that won’t be able to make this argument will be the ones who, like in GeenStijl’s case, were sent an actual communication by the copyright owner that the content was posted without authorization.

If that’s the court’s intent then they should have just flipped the test.  Instead of presuming knowledge, make a copyright holder tell the website that posts links.  If that seems like too much to ask–because why should a copyright holder have to do the extra work of telling everyone not to violate their rights–that’s because it is too much to ask.  But that’s exactly what the test will ultimately end up doing.

Maybe the court just isn’t as psychic as I am.



How long this decision by the court is upheld remains to be seen.  Perhaps it proves so unusable at a practical level that it is refined or reversed within the next few years.  Perhaps courts try to cobble together a patchwork quilt of decisions that mostly follow this test but make it workable.  But as it exists right now there are serious problems applying this test to Facebook, Twitter, Google, or any site that hosts a blog (Hey WordPress, what’s up?).  And there are even bigger ramifications for those hosting platforms on trying to set up a process to handle this new test.  Right now, websites that host content are accustomed to having a process where copyright onwers can assert ownership and take down offending content.  Will that system need to be expanded to then impact other sites that link infringing works?  Will a failure to do so make these sites contributing to the unauthorized communications to the public, allowing an additional expansion of copyright protection?

The EU’s decision is too recent to see how it will play out, but keep your eyes peeled.  This could get ugly fast.  Although the court may have been swayed by not wanting to let GeenStijl get away with being a jerk, they may have inadvertently overcorrected the issue and caused more problems than they solved.


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Filed under Commercial Activity, CopyFUD, Copyright, Europe, Facebook, Fair Use, Google, Social Content, Social Platforms

The Sky Is Not Falling: Your Guide To The New Facebook Terms

The internet has a mild explosion every time Facebook announces a change to its terms of service.  The shockwaves are just now creeping out with questionable articles and scary exposes bemoaning the upcoming changes and a slew of people posting those bogus copyright or privacy notices because they think those matter.  Bogus notices which I blogged about two years ago–a fun little post called You Owe Me $2 For Reading This Blog Post Title (And The Three Signs Of A Social Hoax)–but are still going around.

But what there hasn’t been too much of is an actual comparison of the differences with the old Facebook terms and the new ones.  Because that would be rational and probably not get many clicks.  All the current articles seem to take for granted that the current/old Facebook terms are fine–but change is SCARY!

So here, in the closest way I can be not rational and get lots of clicks, even though it doesn’t matter since I don’t put ads on this site  (wordpress may because I have the free service), is my fear-laden analysis of the actual section-by-section changes to the Facebook terms.  If you want to check yourself here’s a link to the old (or current) terms and the new terms that go into effect in January 2015.  Otherwise, just trust in me and BE AFRAID!!!

1. Privacy

Facebook doesn’t have a Privacy Policy–did you know that?  No, that isn’t a change with the new terms–they haven’t had one in years.  Instead they’ve had a Data Use Policy.  Which is actually a better name for what the policy covers anyway.  But now the policy will be called the Data Policy.  The word “Use” has been obliterated, it’s a whole new world of darkness and evil!

Oh, that’s the only change to the Privacy section.  Try to quell your horror and move on to section 2.

2. Sharing Your Content and Information

If that one change in the Privacy section didn’t terrify you then surely the two, yes TWO changes to the content sharing section will make you crawl under the bed and Instagram scary flashlight pictures all night.

Change 1: Data Use Policy is now Data Policy in the third item.

Change 2: the word “them” has been changed to “your feedback or suggestions” in the fifth item. Which is what “them” referred to anyway only now it’s clearer.

Steal your heart and move on to the next block.

3. Safety

The ninth item (“You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (‘promotion’) on Facebook.”) has been removed.  It’s like they don’t even want us to be safe anymore!  Or it’s like they moved it to another page and link it later.  Either way: EVIL!

4. Registration and Account Security

Registering is when Facebook first sinks its evil tentacles into your personal information and account security is how you keep your own account out of the hands of other people.  So it should surprise nobody that Facebook took this entire section and did nothing at all with it whatsoever.  My goodness, does their evilness know no boundaries?  They’re like a Sbarro restaurant to your lower intestine–pure, fast-moving evil!

5. Protecting Other People’s Rights

The old version mentioned how you couldn’t use Facebook trademarks except as provided in a Brand Use Guideline and it gave examples of what those trademarks were.  Now it doesn’t give examples of Facebook marks.  AT ALL.  Except it makes Trademarks a defined term and gives the examples near the bottom of the document.  THE BOTTOM.  Dracula himself couldn’t be scarier if he was in High School Musical 6: No More Mirrors!

6. Mobile and Other Devices

We all know how important mobile devices are to Facebook users and the company.  Knowing that, can you guess what they did with this section?  NOTHING!  It’s like the moment when the full moon comes out and the guy turns into a werewolf.  Except there’s no moon and no werewolf.  Run!

7. Payments

This section used to force you into the draconian and horrible Facebook payment terms–terms so horrific I dare only utter their name and make several hand-wards to keep the demons away.  The new terms say that you will still be subjected to them–unless other terms are listed and then those apply.  And those terms could be…better?  No, they will be worse!  They will demand your unborn baby and require you to listen to Justin Bieber music non-stop for months!  How dare those…other payment providers besides Facebook make other terms available to you when buying things!

8. Special Provisions Applicable to Developers/Operators of Applications and Websites

This section links to special provisions that were totally in the same document before–you didn’t even have to click last time but NOW YOU DO!  Oh, and they combined this with providers of social plug-ins as well, just to MAKE THINGS SIMPLER/EVILER FOR YOU!

9. About Advertisements and Other Commercial Content Served or Enhanced by Facebook

Oh yeah, here’s the beefy stuff.  Because we all know that Facebook wants all your data to sell to people so that you’ll buy Snuggies and knock-off Legos and flavor injection kits that totally DO NOT INJECT FLAVOR NO MATTER HOW MUCH TERIYAKI SAUCE YOU USE!  (ahem)

Hmm.  They didn’t change anything here.  Or maybe they did–IN INVISIBLE INK!!!  (insert evil laugh)

10. Special Provisions Applicable to Advertisers

Do you put ads on Facebook, you evil bastard?  Then you should know these terms have moved to their own document!  And that document is totally possessed by an evil doll who wants to steal half your socks.  Not all your socks, just one of each pair.  I hate those dolls.

Otherwise, no changes.

11. Special Provisions Applicable to Pages

No changes here…

12. Special Provisions Applicable to Software

No changes here…

13. Amendments

BAM!  Oh, just when you were lulled into a false sense of security, Facebook done Amendment changed you, son!  And do you know what they did?  Do you know what they did?  Why, they clarified when they may make changes to the terms but still said they’ll give you notice!  That’s like McRib evil right there.  They even took away the seven day requirement for posting changes to the terms meaning they could totally post term changes MORE THAN SEVEN DAYS AHEAD OF TIME!  Not like they’ll ever do that though.  I mean, it’s not like we’re analyzing term changes four weeks before they go into effect.

Wait, we are?  THAT’S HORRIFYING!  This is like the BuzzFeed list of 13 Kittens Who Are So Scaredy-Cat They Cannot Even Handle Right Now!

14. Termination

This is the section that says what part of the terms would still apply even if you don’t use Facebook anymore.  And they made LESS terms still apply.  If that isn’t the legal equivalent of the Alien chest burster, I don’t know what is…shudder.

15. Disputes

But what if you have a disagreement with Facebook?  This is where they totally take advantage of you, right?  You bet they do.  And they do that by changing a typo (it said “or” when they meant to say “of”) and they also changed three instances where the limitation only said HIS or HIM and changed it to HIS OR HER or HIM OR HER.  Wait, so these terms apply to women now too?  What is this, Facebook, the women’s suffrage movement of the 1910’s?  Because time travel is scary or something.

16. Special Provisions Applicable to Users Outside the United States

People outside the US don’t get to use Facebook anymore.  Oh wait, that was an early draft.  NO CHANGES?!?!  Why, the implications of this are staggering.  Has anyone told Kim Kardashian yet?  She may need to delete her Facebook page in protest!

17. Definitions

There are so many changes here I can’t even begin to list them.  Actually, there are four and they’re boring.  Kinda like the Blob.  Maybe a long time ago that was scary but now I’m just eating popcorn and waiting for The Fly to start.

18. Other

Obviously Facebook has saved the best for last.  Other is the giant catch-all, the monster cornucopia of platform terms and conditions that lets the giant corporation eat your toes and drain your bank account.  So it should come as no surprise that Facebook changed NOTHING  here.  Because that’s how evil they are: pure evil.  Like pure maple syrup if maple syrup was evil.  Which is crazy talk because maple syrup is pure goodness.


And…that’s it.  My goodness, I’m surprised we made it through all of that.  I believe the only rational response is to post a status update about the Burner convention and then delete our Facebook accounts.  Instead let’s go over to WhatsApp.  I hear the guys that run that app are super cool.

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Filed under Authentication, BuzzFeed, Celebrities, Commercial Activity, CopyFUD, Copyright, Europe, Facebook, Identity, Instagram, Laws, Privacy, Social Content, Social Platforms, Social Tracking, Terms and Conditions

Can Social Media Help You Break The Law In A Country You’ve Never Visited?

The world of free speech.

Yesterday was international Data Privacy Day–if you had no idea then it succeeded. Ironically, this annual campaign to increase awareness over data privacy falls right in the middle of one of the most interesting cases to impact social media privacy and personal data in many years.

The case deals with a number of anti-Semitic tweets that were being posted in French, allegedly by French users of Twitter. Unlike the United States which is highly permissive of hate speech (so long as the speech does not incite violence or is considered fighting words, among the few exceptions), France has specific hate speech laws that provide for both civil and criminal actions against those who defame or insult people based on ethnicity, nationality, religion, race, sexual orientation, or if they are handicapped.

Although the case ends in France (for now), it actually began in Germany when a Neo-Nazi group had access to their Tweets blocked to German users of Twitter in October 2012. At the start of 2012, Twitter rolled out functionality that allowed them to block specific content to countries with laws preventing those kinds of speech. Although initially subjected to scorn for this action by free speech advocates, Twitter pointed out that prior to this feature their only option was to take down tweets globally or leave them up globally. This new feature allowed a more targeted approach but also brought greater emphasis to the national differences in free speech protection.

This new feature was used by Twitter to block the Neo-Nazi group in October.  It was almost immediately followed up by requests from French organizations against similarly anti-Semitic tweets. Twitter complied with the requests and blocked the tweets to French users.  One of the groups involved with the French blockage was not content to merely have the tweets out of circulation–they wanted to go after the individuals posting the hateful content. The French Union of Jewish Students filed suit against Twitter in France demanding the personal information for specific Twitter accounts posting the anti-Semitic content. A judge heard the group’s argument last week and issued a ruling in their favor demanding that Twitter turns over the personal information for these accounts.

Twitter is reportedly considering the court’s decision.  They are not obligated to follow the order–Twitter has no offices in France so there’s no place for authorities to show up and demand action.  Twitter does, however, have many French users and sell advertising to companies in France–so there’s always the potential for the issue to escalate and impact Twitter’s operations within France.

But the case brings up some interesting questions and social media and the differences in legal protections.  We are accustomed to thinking of social media as knowing no boundaries but laws certainly know boundaries.  Speech that is legal in your country may be illegal somewhere else.  Whose law applies?  The country you live in?  The country Twitter operates in?  The country where the person who read your content lives?

Most of my readers are from the United States where we take freedom of speech for granted.  So think of it this way–what if one of your tweets was enough to have you sentenced to death by the courts of a foreign country?  And then that country asked Twitter for all the information they had on you.

Yeah, that’s a bit scary.

And it isn’t so far from the truth.  Egypt did sentence an American citizen to death for his role in a movie critical of Islam.  Given this individual’s reputation, he probably intended the movie to be a bit controversial.  But what if it happened to someone not trying to stir things up and then the foreign country asked Twitter to hand over the information?

I’m not saying this has happened or Twitter would comply.  Twitter has said that they comply with 63% of government requests which is a good amount shy of 100%.   Google just posted a great entry about how they handle government requests.  I do not envy them the work that must go into reviewing those requests.

Still, this French request is not without precedent.  In 2011, Twitter was served with a subpoena to turn over personal information for some users in the UK.  The request was made in relation to a case against some anonymous bloggers and was made two years after the case was initially filed (the case did mention the blogging platform but not Twitter, this seemed to be more of an angle to uncover information on the anonymous blogger).  Twitter told their user of the request and that the user had a few weeks to respond but when he didn’t Twitter turned over the information.

The catch is that the case involved some local politicians in the UK against an anonymous blogger in the UK but the lawsuit was filed in California (where the blogging platform and Twitter operate).  The user could have objected to Twitter turning over the information but would have needed a lawyer in California to make the objection.  Maybe we like that rule–California has some great sushi restaurants and some decent free speech protections.  But the concept of a court action that compels your information taking place thousands of miles from your home that would incur significant expense if you wanted to defend the release of that information is a bit concerning.  Granted, here there was a case in California (defamation and libel, mostly) and California doesn’t sentence people to death over speech, but the underlying notion of a case pending against you thousands of miles from your home is a bit alarming.

Social media has given us all a global stage for speaking to the world without the realization that the entire world might actually be listening and that our speech might be a crime.  While the world celebrated Data Privacy Day yesterday (somebody did, I’m guessing) we should keep an eye on a huge exception to privacy–court cases that can trigger the release of personal information based on laws in a country you’ve never visited.




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Filed under Cyberbullying, Europe, First Amendment, Google, Laws, Privacy, Social Content, Social Platforms, Twitter, UK

Nike Just Blew It: Inside Their UK Twitter Ban

Nike learned that failure to disclose is not the same thing as not hiding information. If you can’t tell what this picture has to do with that point, look at it again.

Some significant news on Twitter marketing activities came out of the UK today as tweets from two footballers (soccer players to the Americans) were addressed by the UK Advertising Standards Authority (ASA).  The first tweet was by Wayne Rooney:

My resolution – to start the year as a champion and finish it as a champion … #makeitcount

The second tweet was by Jack Wilshere:

Jack Wilshere stated in 2012, I will come back for my club – and be ready for my

UK regulators have led the way in requiring disclose of sponsored tweets such as these through the use of a #spon or #ad tag on tweets.  This even led to the interesting Snickergate incident where the question came up on whether a series of connected tweets required the disclosure on all tweets or just the last one.  That incident was the focus of the very first post on this blog, so it’s memorable to me.  Plus it’s about chocolate and social media, two awesome topics that taste great together.

Since these two tweets did not have the required disclosure but strongly appeared to be sponsored, the athletes and Nike were the focus of a complaint before the ASA.  You can read the ASA’s official adjudication here but the bottom line is that the tweets should have disclosed the sponsorship.

Since this was an official action, Nike offered some arguments on why the tweets were not in violation.  I’ll be generous and say that Nike knew they were in the wrong but were still obligated to provide some kind of defense.  Because the less than generous interpretation would be that Nike just blew it.

First, Nike argued that consumers wouldn’t be misled by the tweets because these athletes are well-known for their Nike sponsorship both personally and as members of their teams (Manchester United and Arsenal, in case you don’t know).  The ASA dismissed this argument by simply pointing to the standard that marketing communications must be obviously identifiable as such.  Relying on a Twitter user’s knowledge of the person, their team, or their commercial endorsements is not sufficient.

Nike also said the Nike URL in the tweet along with the hashtag #makeitcount from Nike’s broader campaign made the tweets identifiable as marketing communications.  The ASA correctly pointed out that consumers may not have known about the campaign or see the URL and that it still fails to address the main issue.

Although the ASA is brief in its adjudication, at the heart of this conflict is Nike claiming that they weren’t hiding the connection between the athletes and their brand while the ASA tells brands you must disclose the connection.  Failure to hide information is not the same thing as disclosing it.  Again, let’s be generous and say that Nike just had to put their best shoe forward even though they knew it was futile.  The ASA does conclude with the first advertising Twitter ban, so mark these words because maybe they’ll show up on a trivia test some night in a pub.

The ads must no longer appear. We told Nike to ensure that its advertising was obviously identifiable as such.

Near the end of the official adjudication’s assessment, the ASA politely points out that a simple addition of #ad to the tweets would have made the appropriate disclosure.  They’re far too refined to say something along the lines of “IT’S THREE CHARACTERS FOR GOODNESS SAKE!” mostly because they know better than to use all caps and they might have forgotten that it would be four characters with the space, but it’s still a great (implied) point.  Next time when Nike asks themselves if they should add the disclosure to the tweets they compose for their sponsored athletes, I think their answer will change from “Don’t need it” to “Just do it.”

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Filed under Celebrities, Commercial Activity, Consumer Protection, Europe, Laws, Social Content, Social Media Policies, Social Platforms, Twitter, UK

Shouting “Fire!” In A Crowded Social Media

Similarly, it would be a crime to yell out “OHMYGOD! It’s Justin Bieber!” in the middle of this group. For many, many reasons.

Even the most adamant freedom of speech supporters agree that there is never a total freedom of speech.  The extent to which a freedom-loving society will embrace free speech ends where that speech causes harm.  The classic case is shouting “Fire!” in a crowded movie theater.  But most people who use that example forget a key word.

The dangerous speech here is falsely shouting “Fire!” in a crowded movie theater.  If the theater is actually on fire, shout “Fire!” all your want.  Jump up and wave your hands as you scream it.  Compose a song about it.  Yell it over your shoulder as you race up the aisle.  But if there isn’t a fire and you create a panic that causes injury, freedom of speech isn’t going to protect you from prosecution.  (Interesting note, the case that birthed the phrase, Schenck v. United States, had nothing to do with fires.  It actually upheld a conviction of a man who was protesting the draft during World War I using a rule that no longer applies.)

The same limitation applies for social media, only now it’s even more dangerous to induce false panic because social media posts last much longer than nefarious sound waves.  Although I recently blogged about social media accusations, two other recent examples show the dangers false social media panic can create–both for the instigators and the public.


Take, for example, the case of Paul Chambers in the UK (pointed out to me by @Ninabzai).  On January 10, 2010, while trying to fly to Belfast to meet another Twitter user, snow shut down much of the country’s airports.  In frustration, he sent the following tweet:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky-high!!

As a result of the tweet, four officers came to his work, his home was searched for dangerous materials, his personal property (phone and computer) were confiscated, and he claims he lost his job as a result of the investigation.  He was charged with violating the Communications Act 2003 which makes it a crime if a person

sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character;

Mr. Chambers was convicted and fined about a thousand pounds.  After some media outlets sided with him on the story under the #twitterjoke hashtag, he appealed the ruling based on his tweet not being menacing.  That case is currently being reviewed by several UK judges as they attempt to reconcile social media with existing law.  Although to me the outcome is a bit uncertain (the tweet is right on the line of being read as a joke or not, hard to tell the context of his tweets but if it was independently read then that context would also be missing), it’s also clear the damage has already been done in this case.  While Mr. Chambers may or may not be a successful joke teller, he is certainly an idiot for making a public joke that involves airports and explosives.

Indeed, in Mr. Chambers’ own retelling of the story he compares the tweet to another threat of violence:

Like having a bad day at work and stating that you could murder your boss, I didn’t even think about whether it would be taken seriously.

Apparently the lesson from this incident hasn’t really sunken in if he’s comparing the tweet to a murder threat.  You know, good clean murder and bombings–what could be more innocent and carefree?

Twitter Terrorists

From Mexico comes the story of a school teacher and a journalist imprisoned for sending terrorist threats over Twitter.  The problem began on August 25, 2011, when teacher Gilberto Martinez Vero tweeted the following message about a local elementary school:

i confirm that in the ‘Jorge Arroyo’ Sch. In Carranza Col. an armed group has taken 5 children. Total psychosis in the zone.

Like Mr. Chambers, who sent a tweet about explosives and an airport in a security-aware age, Mr. Vero sent his tweet in the city of Veracruz which has had a tidal wave of drug cartel violence over the last few years.  Including violence against school children.  A local journalist picked up the tweet and began sending it out with hashtags to ensure a wider distribution.  As I think could be expected, the tweets went viral and panic ensued.  Horrified parents rushed to the scene to retrieve their children (probably scared out of their minds that their child was one of the five taken).  In the panic, several car crashes were reported.

The teacher and journalist were arrested for the tweets.  When authorities attempted to charge them with a crime it turned out all they had that read on the situation was a crime covering terrorism threats.  The crime carried a penalty of up to 30 years in prison.  Realizing that may be too harsh, the government quickly passed legislation to make rumor-mongering a lesser offense.  But the backlash had already begun–local citizens were outraged that while real crimes were still going on the government was threatening two Twitter users.  And the public insisted they needed social media to find out what was happening with the real violence–they were scared that a case like this could create a chilling effect that would cause even more harm.  Acknowledging that the Mexican public needs social media right now to find out about current events and that the existing law was too harsh, the two were released.  That’s a particular result for a unique situation, but hopefully everyone involved understands the danger of putting out false information.

Understanding the need for social media coverage in that environment, it’s also bizarre to see the number of blogs and journalists rush to defend the tweets as independent media coverage.  This wasn’t media coverage, this was falsely shouting “Hostage!” in an elementary school.  One apologetic piece in Mother Jones discusses the state of Mexican journalism due to the extended drug violence and while I have sympathy for that environment I don’t believe that excuses the tweets.

I once heard a JetBlue executive speak about using social media in crisis situations.  Her great quote was “It’s only good to be fast if you’re right.”  Here is an excellent example of that–here the two Twitter users were fast but were 100% wrong and that created real panic and real damage.  I’m not saying they should have been put away for years, but they also shouldn’t have been let completely off the hook.  There is a real danger with violence spilling over into schools and that’s a terrifying situation–it also means that if you start a false report you should be held responsible for the harm in being wrong.

In this case, a rare convergence of social need and criminal law gaps let the two off the hook, but the danger of false panic in social media is real and a limit to how we view freedom of speech.

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Filed under Authentication, Europe, First Amendment, Laws, Social Media Risks, Social Platforms, Twitter, UK

Clearing The Bar Of Social Media Accusations

I am aiming my cyber-pistol of justice at your possible cyberstalking self.

It seems like the perfect story of using social media to stand up for yourself.  But what if it isn’t?

In April, colorful sports personality and German high-jumper Ariane Friedrich took to her Facebook fan page to out a cyberstalker.  After receiving emails with explicit photographs, Ariane contacted the authorities but then decided to take further action.  She posted excerpts of the email along with the stalker’s name, email address, and city where he lives on her Facebook fan page.

Ariane said she had been the subject of similar messages and didn’t want to just sit there and do nothing about it.  She wrote:

It’s time to act, it’s time to defend myself. And that’s what I’m doing.  No more and no less. I’m not willing to be a victim again. I’m simply tired and there simply comes a time when enough is enough.

Ariane may be an unknown name to US sports fans but she receives a lot of attention in Germany.  Partly due to her kaleidoscopic hair (which can be platinum blonde one day, bright pink the next) and partly due to the fact that she lives in Germany where they love David Hasselhoff (I’m just saying a high jumper is far more interesting than the Hoff).  She’s also a police officer.  Which makes her actions even more interesting.

Because we’d all like this to be the open and shut case of a woman standing up for herself and putting a cyberstalker in his place.  It is 100% true that nobody should be allowed to send unwanted photos of their genitals to another person and Ariane should not have to put up with that.

But what if the person she outed on Facebook didn’t do anything?  Someone sent her those photos and emails, no doubt.  But was it the person she claimed it was?

That’s the debate going on right now in Germany.  It’s a mixture of properly identifying the stalker, which would make it very difficult for anyone to side with him, and the strict German privacy laws which prohibit such publications.  German newspapers, for example, do not publish names of offenders so that they are not marked as felons after their release.  And, let’s be honest, Germany still has some sensitivity over recording information about people so they tend to be hyper-vigilant on the privacy front.

Ariane’s outing also comes on the heels of a recent lynch mob that formed in the German town of Emden.  In March, an 11-year old girl was murdered and a 17-year old boy was arrested shortly after.  The police let the public know that the 17-year old was the chief suspect which led to a flurry of traditional and social media commentary.  On the social media front, those comments turned into calls for justice, then violence, and a lynch mob formed in front of the local police station.

Problem is, the 17-year old didn’t do it.  He was quickly cleared, but the accusation had done its damage and he and his family were forced into hiding.  Now the authorities are in a tricky situation as they go after individuals who were inciting violence because of the police department’s announcement.

It isn’t hard to find stories of people falsely accused on social media.  That’s not a new threat–people were falsely accused and lynch mobs formed before social media.  But in an age where we are both much more traceable (IP addresses, social media accounts, cell phone numbers) and much more anonymous (no authentication, free email addresses, anonymous social platforms) the danger can be heightened.  Should a police officer be more sensitive to this issue even though she’s a target of the disgusting activities?

As for Ariane, it remains to be seen if the person she outed is the person who sent the email.  But it’s a fascinating predicament.  If she’s right, won’t we all think “Good for her!”?  But if she’s wrong, what will we think?


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Filed under Authentication, Celebrities, Europe, Facebook, Identity, Laws, Privacy, Social Platforms, Social Tracking

Snicker Tweeting and Celebrity Endorsements

Around the world, regulators are still wrapping their heads around what existing rules apply to social media and what new rules need to be crafted. One area of interest I’ve been following in this arena surrounds celebrity tweets in the UK.

Similar to the FTC’s role in the US, the UK’s Office of Fair Trading enforces consumer protection laws. In 2008 that office issued its Consumer Protection from Unfair Trading Regulations. Those regulations came into question in late 2010 and early 2011 over the issue of commercially compensated celebrity tweets. When Elizabeth Hurley sent out almost a dozen tweets mentioning Estee Lauder’s “divine” skincare products and Lily Allen tweeted about her experiences with the new Playstation Move and Grey Goose Vodka (separately, of course, otherwise that’d be far too challenging) regulators took interest.

It’s always a good idea not to mislead your customers when it comes to testimonials or endorsements—not just because it may be the law but also because it prevents backlash from a customer later discovering the communication was perhaps less than honest (like the Honda Eddie Facebook case). In the wake of these Twitter campaigns and the regulators’ crackdown the industry moved to disclosing all compensated tweets with an appropriate hashtag such as #ad, #paid, or the most popular tag of #spon (short for sponsored and not, as suggested to me, an abbreviation of “I’m a celebrity and I’m spooning with this company right now”).

Footballer eats a Snickers

Yeah, I'm eating chocolate and I got paid a lot of money to do it. How do you like me now?

The most recent complication has come up over a clever Snickers campaign that pushes the envelope on when a celebrity must disclose. This campaign involved multiple tweets by a celebrity—first the celebrity would send out a tweet that appeared completely out of character. A popular footballer (soccer player for my American friends) sent out a tweet about his love of knitting between matches. A successful model tweeted a detailed analysis of economic issues. And so on. After the initial wave of “What the heck is this person talking about?” subsided then the celebrity would send out another tweet about how you just aren’t yourself when you’re hungry, typically with a picture of the celebrity now eating a Snickers bar and the appropriate #spon hashtag.

Regulators have taken interest in the campaign because, let’s face it, it’s fun to talk about chocolate. But they’re also questioning whether the initial tweets sent out by celebrities should have included the #spon hashtag since they were paid for and part of a broader campaign. It’s an interesting question since it asks where we draw the line between compensation and commercial effect.

If we regulate social media activity solely around whether money exchanged hands then it’s easy to make a case for the #spon hashtag to be required in this Snickers case. It’s a bright line test that is easy to communicate and apply: money = disclose. However, that test could also negatively impact other activities that tend to look innocent or might actually be innocent. Imagine a charity that works with an athlete but paid the athlete’s travel costs to attend an event—if the athlete tweets about the charity should that be a #spon tweet?

On the other hand, if we regulate based on the marketing impact of the message then we might be able to say that Snickers did it right this time. People reading the first celebrity tweet in the campaign might think it was odd (then again, it’s a celebrity, so they might not think that at all) but wouldn’t have a chance to be persuaded to buy a Snickers bar. And while that first tweet may have led to more people being curious about the follow-up and receiving that marketing message, the second message had the proper disclosure. But using a commercial effect test rather than bright line test discussed earlier could lead to difficult analysis in future cases and possibly inconsistent rulings depending on the activity. Then again, that’s true of a lot of marketing regulations.

Marketing campaigns strive to be engaging and persuasive while regulators want to ensure they are not misleading and unfair. This is an important balance for all consumers. Making this case trickier is the fact that Twitter is incredibly limited in terms of space which has led some regulators to come up with disclosure exceptions or special rules for Twitter. So what’s the best test for this case and beyond?

In this particular case, I think Snickers did it the right way. Anyone reading just the first tweet hasn’t been sold on Snickers and it’s possible they just thought it was a celebrity acting…well, like a celebrity. If they did read the follow-up then the disclosure is there. But the first message, standing on its own, does not have a commercial message.

I wouldn’t go so far as to say that in an extended Twitter or other social media campaign that only the last message requires the proper disclosure. Instead, I believe an appropriate rule would be to require disclosures on any message (tweet, post, share, etc.) that has a commercial impact if the message is viewed in a vacuum.

Do you think that rule would be too difficult to apply or does it strike the right balance between marketing and disclosure?

Update (March 12, 2012): Thanks to my colleagues in Europe, I was recently informed that the issue had recently been decided.  The full adjudication is here but the short summary is that the Snickers campaign was allowed.  Snickers (via Mars, the parent company) argued two theories for allowing the campaign.  First, that the initial tweets were not marketing communications but only the final tweet transformed the initial tweets into commercial communications–this theory was rejected.  Instead, regulators seem to agree with Snickers other theory that only the final tweet was a marketing communication.  They don’t expressly endorse the view but they do discuss how only the final tweet had marketing elements and a tie to the brand.  The regulators said that this final tweet did set context for the initial tweets but did not transform them into marketing so it was acceptable to not have the #spon tag in the text.

In other words, the vacuum test seems to work.

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Filed under Celebrities, Consumer Protection, Europe, Social Marketing, Twitter, UK