The Law of Social Media (Part I)

Who owns user generated content (UGC) posted to social media sites such as Facebook, Twitter, MySpace and the like? How has or will the law evolve to deal with the different, and sometimes unique, modes of personal interaction (with others and with information) made possible by social networking technologies? These are just a few of the legal issues presented by the emergence of social media, one of the fastest growing — and most addictive — forms of Internet-based communication in the relatively brief history of the medium.

1. It Depends

Before diving into the answers, a few words of caution, however. The law evolves slowly and rarely keeps up with technology. Legislation typically solves problems from the PAST decade, not the ones facing Web site operators, users, content providers and ISPs in the immediate future. So if readers believe you can wait for the U.S. Congress (or even state legislatures) to solve the legal status of social media, that is myopic. Far more likely is repetition of the pattern exhibited over the past 15 years with respect to a variety of Internet issues, from spam to judicial jurisdiction. A rather long, and not altogether satisfying, process of applying legacy legal rules to a new technology, progressing in fits and starts and formed principally in the cauldron of litigation.

That is not the optimal way to establish law or policy, but it remains the default in any legal system, including the United States, where citizens have recourse to both a legal code (statutes) and judge-made law (common law). Disputes must be resolved even where, as is all too typical, the statute-writers have not yet dared to tread. The consequences for “social media law” are enormous. While hundreds of millions of Internet users post content to and exchange messages and information via social media on a daily basis, the legal rights, duties and status of that information remain essentially unformed. It is a common impression that lawyers always answer questions with “It depends,” but for social media, those answers are 100% correct. Any effort to compile “the law” of social media — including this essay — is in reality a prediction of how courts will decide cases brought before them. It’s an educated guess, at best.

Social media is unique in some ways (one-to-many, public sharing, etc.), but in other ways is just new communications forum — old wine in new bottles, as the old legal (and biblical) saying goes. Witness St. Louis Cardinals’ baseball manager Tony Larussa’s lawsuit versus Twitter, based on an allegation of so-called “cybersquatting” arising from use of LaRussa’s name as a Twitter “handle” by another subscriber, or criminal prosecution based on “cyberbullying” on MySpace or making assault and murder threats on Twitter.

In May, authorities in Guatemala arrested and charged a man after he sent a 96-character tweet urging depositors to withdraw funds from a bank involved in a political-murder scandal. As Associated Press reports (via USA Today), the message earned him the dubious distinction of becoming one of the first people ever to be arrested for a tweet.

How Much Trouble Can One Tweet Cause?. These are just the tip of the proverbial iceberg but illustrate that the law develops by analogy, applying to new situations the traditional rules applicable to similar circumstances. It hardly matters that LaRussa’s lawsuit, for instance, was not controlled by the federal statute making fraudulent or bad faith domain name registration unlawful (15 U.S.C. 1125(d)) where the domain infringes a trademark. He was still permitted to bring a lawsuit claiming that Twitter’s “misappropriation” of his name as an Internet identifier violated his rights. That the suit ultimately was dismissed before a decision is far less important than that the issue was raised, for the first time, in the context of a judicial dispute.

All of this suggests informed observers should regard pronouncement of social media law as tentative. The traditional rules applicable to social interactions may apply, or may apply differently, in the context of social media. In other respects, social media may upend traditional notions of legal status and privacy.  And with the increasing penetration and popularity of location-based services, which can make one’s physical presence a matter of public record, as well as a commercial commodity, the disruptive impact of social media will likely extend to the law itself.

In Part II of this series of essays, we explore the impact of social media on intellectual property law, focusing on copyright (and then trademark).