Charting the new frontier: Some points of reference when exploring social media.

For the past year I have noticed more “buzz” about journalists’ potential pitfalls when using social media, especially when it comes to liability risk, whether your station could claim your personal sites actually have professional implications, and if you have copyright or trademark rights to the material you post.   This leads to debates about whether to use your actual name on a personal account, say what station you work for, even list your job title.  You need to be very careful when using anything that could potentially be claimed as “station owned.”  If you state on your personal account that you are a journalist and work at a particular station, you could run into issues.  Some could argue you are still acting as a representative for that station.  Agents are starting to promote that they can guide journalists on what to do to keep the boss from giving you trouble over what you say and do online.  Broadcasting and newspaper companies are coming up with social media policies for journalists (see this public list).  One interesting lawsuit is raising issues about who should get access to journalists’ social media accounts, including followers. The case involves a former editor’s Twitter account with Phonedog.  (Here are two interesting articles for background.  First from USA Today titled “Ex-employee sued over keeping Twitter account”, and Knight Digital Media Center blog’s analysis “Lawsuit to watch:  Who owns journalist’s social media accounts?”).  This is just the beginning.  We journalists have no real precedent to lean on to keep ourselves out of hot water.  Meanwhile, media companies are urging us to get online, in many cases daily, with blogs, FB pages and Twitter accounts.  Then there’s the crucial need to network and market ourselves personally.  Finally, you can gather a lot of news and source build online.  It’s easy and effective:  But at what potential cost?  Not only is using social media a type of “print”  it can be seen by far more sources than you may realize and basic codes of ethics may not always work.  If all of this seems overwhelming and a little scary, you are not alone.  Recently I, Beth Johnson, the founder of Survivetvnewsjobs.com, have started collaborating with a prominent first amendment and media law attorney, Cynthia Counts (Here’s a list of high profile cases she’s been involved with and her appearances on TV), to discuss what legal risks journalists face when using social media.  Our conversations are fascinating.  Bottom line, a lot is up in the air.  Journalists are charting a new frontier without a map. That’s why we are committed to bringing you a series of articles to help wade through.  Consider this article a cornerstone for what is to come.  We begin by showing you the basic things you need to consider when using social media for personal reasons.

• Read and understand “terms of use” policies
• Know that trademark, copyright, privacy and libel laws do apply
• Consider what statements of opinion are, since they could subject you to liability
• Be sure you clearly define your relationship to each audience

First, here are some links you need to bookmark:  Twitter’s terms of service , trademark and copyright policies. For Facebook, see the pages terms, statement of rights, trademark policy and copyright policy.  Why so many links?  These connect you to the legal terms you are agreeing to each time you post on the site. Counts says not only is it important to look at who has the rights to your posts, but also whether social media sites are given a license to display your tweets and posts simply because you use the site.  With that in mind, these policies can be quite interesting.  For example, under Twitter’s Terms of Service, section 5, “Your Rights” it states:  “You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”  Then Twitter helps you out, by offering this highlighted tip, “This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”

Could this cause serious implications for you?  Consider retweets.  The Twitter policy states“You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability… You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.”  The takeaway here, according to Counts, is because you are technically publishing information with your Twitter account, you need to consider personal liability. Generally, journalists can be held liable for any statements they repeat, even if they are simply quoting a source. The Communications Decency Act, however, likely provides an exception for retweets of content created by a third party.  But if you ever modify someone’s tweets and end up changing the meaning, or modify to add your opinion, you could potentially put yourself at risk of liability. (We will delve more into potential risks and defenses to protect you in another article.).  Now Facebook:  First, you need to be very clear that you are not infringing on copyrights. FB has access to your stuff, so more people can see your content than you may realize.  This is explained in FB’s Statement of Rights section 2, Sharing Your Content and Information, “You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:  For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”  Importantly, if you make a fact error and erase it, a third party, possibly not even directly connected with you on FB could still gain access to that printed mistake.  This section delves more into how far-reaching your content can go, beyond your control:  “When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).” So FB can distribute your content all over the place, and you are liable if there’s a problem.  Because FB has widespread reach, the potential damages if there is a copyright or liability problem can be greater.

Twitter and Facebook also have copyright and trademark policies.  Both make mention of potential copyright issues with photos.  Think about your personal social media accounts. Do you use any kind of headshot?  Do you have the station and/or photographer’s permission?  Many people use their station’s call letters in their profiles on their various social media accounts.  Could these references lead to trademark issues?   Let’s delve into that idea a bit more.

Counts says where you work is a statement of fact.  Your job description is as well.  So, using them in your profiles are not copyright or trademark issues.  But, she says you need to look at the user agreements. When you do, statement of fact is not as clear cut of an argument.  For example: Twitter goes so far as to spell out how to set up an account that is more personal in nature in its Trademark Policy:  “ An account’s profile information should make it clear that the account is not actually the company or business entity that is the subject of the news feed/commentary/fan account.   Here are some suggestions for distinguishing your account:

Username: The username should not be the trademarked name of the subject of the news feed, commentary, or fan account.

Name: The profile name should not be the trademarked name of the company or include the trademarked name in a misleading manner.

Bio: The bio should include a statement to distinguish it from the real company, such as “Unofficial Account,” “Fan Account,” or “Not affiliated with…”

Background image / Avatar: The account should not use another’s trademark, logo or other copyright-protected image without express permission.

Communication with other users: The account should not, through private or public communication with other users, try to deceive or mislead others about your identity.

How about Facebook?  It allows companies to register trademarks to protect themselves.  Again, in its Facebook Pages Terms, FB recommends having express permission to use logos and/or photographs because of possible copyright infringement:  “All covers are public. This means that anyone who visits your Page will be able to see your cover. Covers can’t be deceptive, misleading, or infringe on anyone else’s copyright. You may not encourage people to upload your cover to their personal timelines.”  In other words, do not use head shots taken by your station unless you have a written license saying you are allowed to publish these images for your personal use.

So, it may not be a trademark or copyright issue to use your station’s call letters, but Twitter and FB’s written policies certainly seem to muddy the water a bit.  Really look over Twitter and Facebook’s policies to make sure any references to or use of material from the station complies. Also read up on what recently happened between Barrett Tryon, a multimedia journalist formerly with the Colorado Springs Gazette, and the newspaper’s parent company, Freedom Communications.  Tryon posted a link on his Facebook timeline to a Los Angeles Times article about the sale of Freedom Communications.  Tryon says the, Gazette told him to remove the post on his personal FB page, citing the station’s social media policy. This article on JimRomenesko.com shows the post by Tryon. If you want to see Freedom Communications’ social media policy, check out this article from Poynter, “New social media rules for Freedom Communications staff.”  (This case is far from clear cut and raises a lot of other issues about journalist’s rights that we also will delve more into.) Tryon ended up resigning and explains why in this article by American Journalism Review.

If this case makes you wonder about your own personal account, here are some key points Counts suggests you consider.

• Understand your employer’s social media policy (whether those policies are fair or could stand up in court, like the ongoing debate over the Colorado Springs Gazette’s actions, is another matter we will look into this more later.)
• Limit followers to close friends and families, ideally not connected to your work in any way.  You may even want to consider using a different name.
• Refrain from making comments about your work and focus on personal things, instead.
• Remember that deleting content may not be enough to remove it from cyberspace if other users have not deleted it as well.

The point is you don’t want your employer to be able to argue you were acting as an agent for the station on that particular account.  By focusing on personal things when you post, limiting followers and avoiding talking about your station or showing images from your station, you are creating relationships with followers that clearly show the people who visit your social media accounts do so to stay in touch with you.  They are not following you to monitor your work at the station.  Following these tips should help you keep your personal life truly personal in the social media world with little risk of your employer trying to use what you say or do against you. 

Cynthia Counts is the founder of the Counts Law Group.  She has a well-regarded first amendment practice and represents numerous print media and broadcast clients. Her areas of expertise include libel, privacy, contracts, product liability, and employment discrimination.