Social media has revolutionized the way people communicate, the way people do business, and the way people protect their rights. The speed and ease with which information now travels to anywhere in the world has been both rewarding and challenging, particularly in the area of intellectual property. For example, it has been rewarding to users who can now reach their target audiences more quickly and effectively. It has also been challenging to users who wish to protect their intellectual property online but have difficulty controlling the dissemination of infringing materials.
The Courts have also grappled with the protection of intellectual property rights online and have recognized the difficulty in enforcing those rights. For example, in a case involving a “reverse class action” (i.e. one plaintiff versus multiple defendants) against an unknown number of alleged infringers of copyrights in various movies, the Court held:[1]
Under the cloak of anonymity on the internet, some can illegally copy, download, and distribute the intellectual property of others, such as movies, songs and writings. [...] The internet must not become a collection of safe houses from which pirates, with impunity, can pilfer the products of others’ dedication, creativity and industry.
It is clear from recent jurisprudence that internet users cannot evade liability for infringement of intellectual property rights simply through online anonymity. The Courts recently appear to be interpreting statutes such as the Copyright Act in a manner that allows intellectual property owners to protect and vindicate their rights as quickly, easily, and efficiently as possible. For example, the Supreme Court of Canada recently held that a world-wide injunction was the only effective way to mitigate the harm to a plaintiff whose rights were being infringed in Canada but a local injunction could be easily evaded if the infringer changed its virtual location online. As such, the Court found that the only way to ensure the injunction’s effectiveness was to apply it world-wide and order Google to globally de-index the infringer’s websites.[2]
There are legal implications of using social media, including: 1) copyright issues; 2) trade-mark issues; 3) privacy issues; and 4) employment-related issues.
Copyright issues: Avoiding copyright infringement as well as protecting one’s own works in the age of social media can be challenging. Social media apps like Instagram allow users to copy and link to other users’ photos at an incredibly rapid pace such that it becomes difficult to trace a picture to its original source. All users of social media sites should familiarize themselves with any Terms of Use policies on social media apps, including how complaints of copyright infringement are handled.
Trade-mark issues: While the use of social media apps can be instrumental to businesses seeking to prosper, the misuse of social media can potentially expose users to liability for trade-mark infringement or dilution of others’ brands. For example, users who regularly re-post others’ photos or leave comments on others’ photos should ensure that trade-make rights are being respected and that their actions do not negatively impact the brands of other users. Terms of Use policies should be regularly consulted and followed appropriately.
Privacy issues: Social media users need to be careful that the pictures and blogs they post online do not disclose personal information of others, including employees or clients, in contravention of provincial and federal privacy legislation. The use and disclosure of personal information is heavily regulated in many jurisdictions and the sanctions for failing to comply with the legislation can be very costly.
Employment-related issues: Many of the legal issues that arise as a result of social media can be managed by ensuring that appropriate workplace policies are in place governing the use of social media by employees. Since corporations can be held vicariously liable for the conduct of their employees, it is important that employees are properly educated and trained in using social media apps to promote the company's brand.
The new age of social media presents great opportunities for individuals and corporations. However, the use of social media also carries with it the risks of legal liability. Such liability can be minimized by taking appropriate steps to both protect an individual or corporation’s own intellectual property as well as respect the intellectual property of others.
About the author
Daniel Daniele is a senior associate lawyer at Norton Rose Fulbright Canada LLP and specializes in intellectual property litigation.
[1] Voltage Pictures, LLC et al. v. John Doe #1 et al., 2017 FCA 97 at paras. 1 and 26.
[2] Google Inc. v. Equustek Solutions Inc., [2017] 1 SCR 824.