Know where the legal line lies in what you can and cannot say online

Attorney General's OfficeIf you need further evidence that social media is now very much part of the fabric of contemporary society, it comes in the form of an initiative by the Attorney General’s Office designed “to help prevent social media users from committing a contempt of court.”

Attorney General for England and Wales Dominic Grieve, QC, MP – the British government’s senior legal adviser – announced a change in government policy today about ‘not for publication’ advisories issued to the mainstream media designed to make sure that a fair trial takes place and warn people that comment on a particular case needs to comply with the Contempt of Court Act 1981.

[...] Blogs and social media sites like Twitter and Facebook mean that individuals can now reach thousands of people with a single tweet or post. This is an exciting prospect, but it can pose certain challenges to the criminal justice system.

In days gone by, it was only the mainstream media that had the opportunity to bring information relating to a court case to such a large group of people that it could put a court case at risk. That is no longer the case, and is why I have decided to publish the advisories that I have previously only issued to the media.

In other words, anyone with an internet connection can now read publicly what previously went privately only to a small group.

You’ll be able to read future advisories on the Attorney General’s Office website and via Twitter – just follow @AGO_UK.

In his announcement, the Attorney General added:

[...] I hope that by making this information available to the public at large, we can help stop people from inadvertently breaking the law, and make sure that cases are tried on the evidence, not what people have found online.

It’s a good initiative as raising awareness that leads to better understanding will provide people with the opportunity to act within the law and, thus, avoid themselves being in the dock.

It may surprise you (or not) that quite a number of people seem to believe that you can talk about anything online via social networks such as Twitter and Facebook with impunity. Say what you like, it seems to be: there is little consequence from a quick tweet or status update.

Even in professions like public relations, awareness and understanding of what you can and cannot say publicly on social networks from a legal point of view is pretty low, as evidenced by an informal quiz during the Don’t Risk Litigation: Know Your Social Media Law session at the CIPR’s The Public Relations Show 2013 in London last week.

I participated in that session and took part in the quiz, along with the other 50 or so session attendees, being one of only five people left standing by the end of it, ie, we had the correct answers.

You can listen to that session including the quiz in this CIPR podcast:

(If you don’t see the audio player above, listen on SoundCloud.)

In the past, the Attorney General has issued around five advisories per year although the announcement notes that ten have been issued so far in 2013.

Whatever the number, make sure you’re keeping current with the law and social media, especially if you’re a communicator whose clients (or employer) would expect you to know where the line lies between what you can and cannot say online.

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Curating Leveson

levesoncoverI’m experimenting with getting to know Spundge, a content curation and publishing platform (which Craig Silverman talks about at length in the latest FIR Interview podcast I posted yesterday).

Spundge is a lot about finding and filtering relevant content that matches topics you’re interested in. You do this through creating a Spundge Notebook, a sort of virtual filing cabinet, that is where the content found by Spundge’s algorithms and APIs in response to the key words and phrases you’ve defined is presented for you to determine what you do with it.

To help me learn how Spundge’s curation process works, I created a Notebook called Leveson and What’s Next, on mainstream and social media coverage of the Leveson Inquiry and all the hoo-ha and kerfuffle that began the moment the report and recommendations were published on November 29.

If you’re not sure what the Leveson Inquiry is about, its Wikipedia entry is a good place to gain a concise overview:

The Leveson Inquiry is a judicial public inquiry into the culture, practices and ethics of the British press following the News International phone hacking scandal, chaired by Lord Justice Leveson, who was appointed in July 2011. A series of public hearings were held throughout 2011 and 2012. The Inquiry published the Leveson Report in November 2012, which reviewed the general culture and ethics of the British media, and made recommendations for a new, independent, body to replace the existing Press Complaints Commission, which would be recognised by the state through new laws. Part 2 of the inquiry has been deferred until after criminal prosecutions regarding events at the News of the World.

Among all the news and opinion items I’ve seen so far,  two that are very related struck me as highlighting the scale of the task facing everyone in this country, not the least those in positions of power who will make decisions about press regulation on behalf of all of us.

If you’ve been following reports and opinion, you’ll know there’s huge polarization. That’s no better illustrated than looking at online petitions that have been set up, one pro Leveson’s recommendations, others anti.

So far, the pro-Leveson petition set up by the Hacked Off pressure group has gathered over 140,000 signatures.

levesonpetition-pro

(As an aside, I signed Hacked Off’s petition last week when it had less than 14,000 signatures, just 10 percent of what it has attracted in less than a week as I write these words.)

In contrast, anti-Leveson petitions set up on the government’s e-petitions website have managed only tens of signatures let alone hundreds or even thousands, with the most popular one attracting just over one thousand.

levesonpetition-anti

It looks quite clear that the ayes want it. Whether they’ll have it remains to be seen. What’s equally clear is that the clock’s ticking on self-regulation.

I’ll continue to curate content on this in Spundge. And, as Spundge is a collaborative platform, if you’d like to participate in this with me, you’ll be welcome. Good on-the-job learning.

Let me know if you would like to.

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As it turns out, Apple isn’t above the law (and which is a bit behind the times)

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When Apple posted an apology on its UK website last month as part of the price it paid in losing a lawsuit brought by Samsung, it didn’t endear itself well to the High Court.

The lawsuit was filed by Samsung seeking a legal declaration that its Galaxy Tab tablet design did not infringe an Apple design patent for the iPad, of which Apple had accused Samsung of infringing.

Earlier this week, the high Court judge ordered Apple to take down the notice they did publish on October 25 within 24 hours and replace it with a new statement that complies with the legal order.

That first notice looked like this:

As Bloomberg reported on November 1, Apple’s post inserted four paragraphs including excerpts of the original court ruling regarding the tablets’ coolness that appear to favour Apple; and details of German lawsuits about similar issues that the court said weren’t true.

Bloomberg noted:

[...] “I’m at a loss that a company such as Apple would do this,” Judge Robin Jacob said today. “That is a plain breach of the order.” [...] The notice created the "impression that the U.K. court is out of step with other courts," Henry Carr, Samsung’s lawyer, said in a filing. “It was clear the judges were not happy with what Apple had done," Gary Moss, a lawyer at EIP Partnership LLP who isn’t involved in the case but attended today’s hearing, said in a phone interview. “They thought Apple was playing fast and loose."

So Apple bit the bullet and published a new notice a few days ago, which looks like this:

applelegaljudgement2

The company also placed the same wording in ads in a number of UK national newspapers. So, all well and good and surely the end of the matter.

Not exactly.

Apple played a hidden tech card with a bit of JavaScript code, says Geekosystem this weekend, that tries to hide the notice on the website:

applejavascript

[...] While it may at first simply seem like something that’s included for aesthetic reasons, as the JavaScript’s function is to resize the iPad banner, it’s telling that the code is included on the U.K. homepage. Some of the other versions of the homepage resize in the same way, but it’s certainly not universal. Canada and Japan both resize, but not the regular homepage for the United States. By resizing the banner, the JavaScript makes it to where users will always need to scroll down in order to see Apple’s statement. Even though the other versions of the site have the same layout, minus the statement about Samsung, they don’t include the JavaScript bit in question.

I wonder if the High Court will regard this as Apple playing fast and loose even more. I wouldn’t be surprised if they do; if so, will there be consequences for Apple?

What this suggests to me, more than anything else, is that court-ordered apology-type notices, such as in this case, were designed in the age of print where the only way to be contrite publicly in obeying a court order was to publish your notice in a mass medium, eg, one or more national newspapers.

Such mass media were the only means available to do this.

Now there’s the internet and the world wide web – and note: they’ve been around for some decades – and far more sophisticated publishing methods and tools than in those days of yore.

Perhaps in the future of court orders such as this, the law needs to consider how a notice is published along with what the notice actually says.

And one other note: take a look at what Apple UK’s website, and the notice concerned, look like on a mobile device, in this case, my Samsung Galaxy SII:

applemobile1applemobile2

Even though the screenshots are 50 percent actual size, Apple’s UK website is impossible on a mobile device. Looks even worse on an iPhone 4S with its smaller screen (3.5 inches versus the SII’s 4.3 inches).

Surely not fast and loose with mobile as well…

[Update Nov 9:] CNET reports that Apple has quietly pulled the apology-hiding code from its UK website:

[...] The Apple U.K. Web site now displays two alternating fixed-sized images of the iPad Mini and the new iPad with Retina display – refreshing the page cycles between the two recently launched products – while the four boxes underneath are no longer fixed to the bottom of the display. Although the central images are still large and many displays require the user to scroll down, the forced-scrolling "resize" code is no longer loaded into the Web site’s code.

Though the code still exists on Apple’s servers (it can be found here), it is no longer called upon when the U.K. Web site loads up.

Looks like common sense prevailed. Or was it legal or other pressure? Apple’s not saying anything, says CNET.

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Why share if you reserve all rights?

ch4allrightsreserved

Channel 4 News posted a collection of dramatic photos to its Google+ page of the devastation wrought by Superstorm Sandy in New York City and elsewhere on the US east coast.

My second thought was why post these pics with the restrictive copyright wording of “all rights reserved“?

I noted in my post on Google+ when I shared Channel 4’s post:

[...] So how does that fit with the social web and sharing – just like I’ve done with the pics here on Google+?  And if I import this Google+ post to my blog or share it on Twitter, that broadens the scope of the share by some magnitude, and then what? And what if someone shares my post and also makes use of one of the images on his or her blog or website?

It seems to me that if you post pictures to a social networking site like Google+ – especially pictures that are of an event with huge and continuing public interest – you do so wishing for your content to be shared, otherwise why post it to a place where sharing others’ content is a major element of what people do?

“All rights reserved” is very much at odds with that open sentiment. But what if the pics need to be use-restricted by copyright, with all rights reserved? I’d argue that you shouldn’t post them to a public social network in that case.

In any case, I wonder how many people will look at the photos and just pin them to Pinterest without any thought of the words “all rights reserved.”

creativecommonslogo

Surely a Creative Commons copyright license would be a better way to stake a claim over your intellectual property rights but in a way that gives others a legitimate way to share your content? Such an approach also opens up many possibilities for linking to your content as well as citations and attributions, thus prolonging mentions online of your name/brand.

That’s what I’d do. How would you address this point?

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Just because Apple had to doesn’t mean they want to

Apple has posted a statement on its UK website that is the apology it was ordered to publish by a High Court judge as one result of losing the case in a lawsuit filed by Samsung seeking a legal declaration that its Galaxy Tab tablet design did not infringe an Apple design patent for the iPad, of which Apple had accused Samsung of infringing.

Take a look at the statement as shown in this screenshot (or see it on Apple’s website):

applelegaljudgemen540t

The wording of the judgement is quite interesting, especially the final paragraph referencing the upholding of Apple’s claims in other jurisdictions. But do you notice anything more interesting than the words?

How about the layout. Nice, isn’t it? Makes good use of white space for a clean uncluttered look that’s typical of Apple’s minimalism at work.

Maybe it’s extreme minimalism at work. There’s no branding of any type at all, no logo, no company description anywhere, no links to anything else on the website.

In short, there are no suggestions at first glance that you’re on an Apple website.

Such minimalism on webs pages isn’t new for Apple. Yet in content that’s also a statement of one type of another, the page concerned fully fits in with overall site look and feel. Take this example – the letter from Apple CEO Tim Cook posted on the US website last month that apologises for the maps debacle:

appletimcooklettermaps

With this, notice the branding, the logo, the links, all consistent with the rest of the website. Quite a difference in presentation.

With the Samsung apology notice, the only link I could find to it from anywhere on the Apple website is one in the footer on the Apple UK home page.

applejudgementlinkfooter

In the Samsung case, the legal judgement required Apply to publish the apology wording on their UK website. it didn’t say how they had to do it. They also have to take advertisements in some of the UK’s national newspapers and repeat the apology. I haven’t seen any such ad yet. I wonder how they’ll address that. Extreme minimalism, I expect.

(Via CNET UK)

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Do your due diligence before using someone else’s content online

bogart-casablanca

The Financial Times reports on an interesting legal dispute between British luxury fashion house Burberry and the estate of actor Humphrey Bogart that highlights the copyright minefield businesses can be faced with on using images online.

Burberry used a still from the final scene of the film Casablanca, showing Bogart in his iconic trenchcoat, in a Facebook timeline depicting the evolution of Burberry’s products and culture. Bogart’s estate said the use was without its permission and, in any case, Bogart preferred the rival Aquascutum brand.

While the FT says the legal dispute has been settled, its report illustrates the rocky path for the unwary when it comes to using third-party content, whether that’s images or any other digital medium.

I think it’s surprising that this case of Burberry actually got to a lawsuit. Or perhaps it does also illustrate the pitfalls if you think an image is safe to use and haven’t rigorously checked that, in fact, it is. And, as the FT notes in its report, of all the pictures in all the world, why did Burberry have to upload that one?

The matter of permissions and copyright came up earlier this year regarding Pinterest, the poster-child for easy copy-and-paste that lets anyone share any content online, whether that’s legal or not.

Businesses of all shapes and sizes have scrambled to create a presence of some type on Pinterest.

But as the Burberry example shows, businesses cannot afford to do any less than conduct due diligence in rigorous permission-seeking from the owner of intellectual property they want to use – whether it’s images or any other content and wherever they plan to use it – to ensure they don’t find their communication efforts undermined by a lawsuit.

[Later Footnote] After I published this post, it occurred to me that I had come up against the very pitfall of which I wrote, about seeking permission to use someone else’s content before using it. I refer to the Bogart image I’d used, taken from the photo stream in the Humphrey Bogart Estate page on Facebook.

Had I fallen into an easy trap? Just because a photo or image is posted on Facebook, it means it’s ok to just use it?

I think I had. Slap-on-forehead moment. It may well be that it’s ok to use that image the way I did, linking back to it. But that does not make it ok without being certain, ie, seeking permission first. I hadn’t done that.

So, I’ve replaced that image with the one you now see above, one that is in the public domain.

A pity, really, as the one I first used was a really great Bogart pic. Not a valid reason to use it without permission, though.

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