New Media and the law

Who am I?New media lawyer, blogger,

social media fanatic

3 principle features of social media

Listen

Converse

Share

Social media is very good!

It is even better than ...

But there are risks

Don’t panic

The legal stuff ...

Issues to consider ...

• Freedom of expression

• Content licensing

• Privacy

• Unlawful competition

(we call it “Freedom of Expression”)

This is the right ...

There are competing rights ...

versus

“Freedom of the press does not mean that the press is free to ruin a reputation or break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No

unreasonable restraint should be placed on the press as to what they should publish.”

“Because they have never been exposed to the sinful ways of the West, the various tribes of South Africa live healthy and peaceful lives, only occasionally indulging in a bit of ethnic cleansing.”

It is a careful balancing act

Content licensing

What is copyright?

• Exclusive rights

• Works embodying intellectual content

• Authorise others

• Perform certain acts (for example, to exploit works for personal gain or profit)

Categories of “Works”

Literary works

Basically printed word

Speeches and lectures

Tables and compilations of data

Includes dramatic works reduced to writing

Musical works

• “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music”

Artistic works

paintings, sculptures, drawings, engravings and photographs;

works of architecture;

other works of craftmanship

Sound recordings

Not to mention ...

• Cinematograph films

• Sound and Television Broadcasts

• Programme-carrying signals

• Published Editions

• Computer Programs

There are exemptions from

copyright infringement

• Fair dealing

• Use for judicial proceedings

• Quotations

• Illustrations for teaching

• Ephemeral copies

• Works delivered in public

• Reproductions in press or broadcast

• Official texts, political speeches, news of the day

Is sharing caring?

• Copyright vests by default

• Copyright Act 98 of 1978

• Severely limits how content can be used without permission

• Not conducive to Web 2.0 free luvin’

There is another option ...

What is Creative Commons all about?

Creative Commons licenses are free licenses that permit a range of uses of content licensed under

them

Creative Commons licenses work within the framework established by Copyright

http://creativecommons.org/about/licenses/meet-the-licenses

How about a practical example

Nine Inch Nails36 Ghosts IV by Nine Inch Nails released under a Creative Commons Attribution Non-Commercial ShareAlike 3.0 US license

Ghosts 1 to 4

• Released under Creative Commons Attribution Non-Commercial ShareAlike 3.0 US license

• High quality audio files

• No DRM!!!

• Released onto BitTorrent and Pirate Bay

• For sale on ghosts.nin.com

Ghosts 1 to 4

• 5 distribution options online

• Free download (9 tracks)

• $5 download (all 4 albums, high quality)*

• $10 2 CD set (including download)

• $75 deluxe edition 2 CD, 1 DVD, 1 Blu-ray disc (don’t forget the downloads)

• $300 Ultra-deluxe edition superpack

* I bought one one these ... and I am barely a fan

So what happened?

Ultra-deluxe edition

Ultra-deluxe edition

• $300

Ultra-deluxe edition

• $300

• 2 500 produced

Ultra-deluxe edition

• $300

• 2 500 produced

• ALL SOLD OUT IN DAYS!

Ultra-deluxe edition

• $300

• 2 500 produced

• ALL SOLD OUT IN DAYS!

• $750 000 straight to NIN

$1 619 420 in the first week of sales*

*According to Rolling Stone: http://www.rollingstone.com/rockdaily/index.php/2008/03/13/nine-inch-nails-ghosts-i-iv-makes-trent-reznor-an-instant-millionaire/

Oh, and NIN isn’t signed to a major record label

Unlawful competition

Customer relationships

• Employees are the face of a company

• Who really forms relationships with customers?

• Are employers protected if employees leave?

• Who has the power?

The stick

Restraint of trade provisions*

Monitor data transfers and employee communications

Disciplinary procedures

Dismissals

*Most definitely enforceable

The carrot

Participate in relationship building exercises with customers

Look after employees

Take an interest in who is saying what to whom

Privacy

Which of these do you

use?

How much do you publish

online?

What happens to what you

publish online?

Privacy in social media

• Can be tricky

• Read the terms of use

• Be sensible about sensitive information

• There can be outages and exploits

What can you do?

Take your chances

or ...

Read the terms of use

Read the privacy policy

Draw lines in the sand

• What information is most sensitive?

• Decide to never let that information out into the wild.

• Everything else is compromised and public.

Claim your identity on the Web

on the other hand you could be the provider ...

in which case there are a couple things to bear in mind ...

There are rules about gathering personal information

“personal information”1 means information about an identifiable, natural person, and in so far as it is applicable, an identifiable, juristic person, including, but not limited to- a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;

b) information relating to the education or the medical, criminal or employment history of the person or information relating to financial transactions in which the person has been involved;

c) any identifying number, symbol or other particular assigned to the person;

d) the address, fingerprints or blood type of the person;

e) the personal opinions, views or preferences of the person, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;

f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;

g) the views or opinions of another individual about the person;

h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the person, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and

i) the name of the person where it appears with other personal information relating to the person or where the disclosure of the name itself would reveal information about the person;

j) but excludes information about a natural person who has been dead, or a juristic person that has ceased to exist, for more than 20 years;

Draft Protection of Personal Information Bill

How would this affect you?

Makes biometric security systems

a little tricky

Suddenly people’s opinions you may gather

are protected as personal information

Do you have a privacy policy?

Run for the hills?

• No, it is not all bad

• Social media has much to offer businesses

• The main thing is to be aware of the risks ...

• ... and provide for them

My contact details

• Paul Jacobson

• 083 444 8260

• paulj@jacobson.co.za

• pauljacobson.org

paul.myplaxo.com

linkedin.com/in/paulj

twitter.com/pauljacobson

pownce.com/pauljacobson

Where you can find me

pejrm1

Selected image credits*• Slide 3: Image by Cambodia4Kidsorg (http://www.flickr.com/photos/cambodia4kidsorg/354932362/) licensed under Creative Commons

Attribution 2.0 license;

• Slide 5: Listen to ME! by Orange Beard (Creative Commons BY 2.0) at http://www.flickr.com/photos/metrojp/92038203/;

• Slide 6: the conversation by polandeze (Creative Commons BY 2.0) at http://flickr.com/photos/polandeze/1206596658/;

• Slide 7: Sharing birthday cake by efleming (Creative Commons BY 2.0) at http://www.flickr.com/photos/efleming/237379252/;

• Slide 8: Untitled by ms.Tea (http://flickr.com/photos/teagrrl/79351300/in/set-1689764/) licensed under a Creative Commons Attribution 2.0 license;

• Slide 11: Constitutional Court by Paul Jacobson licensed under Creative Commons Attribution ShareAlike 2.0 license;

• Slide 13: Free speech zone by mus (http://flickr.com/photos/mus/3457967/) licensed under Creative Commons Attribution ShareAlike 2.0 license;

• Slide 15: Doors of the Constitutional Court by Paul Jacobson licensed under a Creative Commons Attribution ShareAlike 2.0 license;

• Slide 18: Balancing Act by zeebleoop (http://flickr.com/photos/zeebleoop/325400310/) licensed under a Creative Commons Attribution No Derivatives 2.0 license;

• Slide 19: Free Content for a Free Society! 7/12 by Matthias Mehldau (Creative Commons BY 2.0) at http://flickr.com/photos/wetterfrosch/130493617/;

• Slide 24: More sheet music by pfly (http://flickr.com/photos/pfly/128167751/) licensed under Creative Commons Attribution ShareAlike 2.0 license;

• Slide 26: Vinyl by stevecadman (http://flickr.com/photos/stevecadman/172600054/) licensed under Creative Commons Attribution ShareAlike 2.0 license;

• Slide 28: copyright by tuppus (http://flickr.com/photos/tupwanders/79458852/) licensed under Creative Commons Attribution 2.0 license ...

• Slide 66: my fingerprint (index, left hand) (http://flickr.com/photos/fazen/3778408/) licensed under a Creative Commons Attribution 2.0 license;

• Slide 67: interview (http://flickr.com/photos/timsnell/1387723389/) licensed under a Creative Commons Attribution No-Derivatives 2.0 license.

*All images used are available under license from iStockphoto.com, have been licensed under Creative Commons license or are in the public domain. Where the images are licensed under Creative Commons license, the license permits commercial use. Due to an error or pure laziness on my part, not all images are properly attributed in this presentation.