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platform gives you the right to re-post things on
that platform, but there are particular risks if you
take things outside of the platform and try to
use it for something, particularly for commercial
purposes, without their permission.”
For example, a man who made headlines for
accidentally live-streaming the birth of his son last
year is now suing the news agencies ABC and Yahoo
for using part of the video without authorization.
Rights of publicity similarly pertain to posts; it’s why
actress Katherine Heigl filed a $6 million lawsuit
against Duane Reade for using a paparazzi photo
of her carrying the drugstore’s shopping bags to
promote the company on Facebook and Twitter.
(The parties settled out of court.)
Even hashtags can be subject to trademark
issues. In one recent case, the education
consulting firm Public Impact convinced
a Massachusetts court to stop the Boston
Consulting Group from using #publicimpact on
its social media platforms, arguing the hashtag
constituted trademark infringement.
“The more you add words to your hashtag and
make clear who you are and that you are not the
same as the other entity, it is less likely to be a
problem,” says Cendali.
While so far only companies have gotten
in trouble for hashtags and trademark issues,
Cendali warns, “When it comes to social media,
the same rules apply to individuals that apply to
Defamation laws pertain to social media
activity, too. In 2015, when someone
anonymously posted attacks on Craigslist about
one of his clients, Schultz filed a John Doe
lawsuit and used subpoenas to force Craigslist
and an internet-service provider to release
the identity of the individual. “It was clear he
thought nobody would find out who he was,”
says Schultz. The case was settled last year.
At the same time, social media could complicate
libel and defamation cases. In such matters, public
figures have a greater burden to prove they’ve
been wronged. But in an age in which an internet
celebrity can have tens of thousands of followers
on Twitter, who exactly is a public figure?
“The Supreme Court has never provided a
clear definition of a public figure,” says Erwin
Chemerinsky, dean of the University of California,
Irvine School of Law and a constitutional law expert.
There are certainly complications and risks with
social media, but also rewards.
“In the past, to reach a mass audience you
needed to be rich enough to own a newspaper or
get a broadcast license. Now anyone is able to
reach a mass audience thanks to social media,”
says Chemerinsky. “Now it is almost impossible
for a country to close off free speech.”
With social media playing an increasingly
prominent role in court cases, how should folks keep
their digital activity from landing them in hot water?
For starters, make sure your privacy settings
on sites like Facebook and Twitter are set to the
highest level, says O’Mara. And if you find yourself
facing a legal action, don’t delete your accounts;
it could look like you’re obstructing justice.
But, most of all, be smart about your social
media activity. It might feel like you’re just
chatting with friends, but, says Mohamedbhai,
“most of the time, the things you post on Twitter
and Facebook and other social media sites are
considered by the courts to be you getting on
the top of a building with a megaphone and
screaming things to the world.”
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Cohen & Perfetto LLP is proud to announce that the
founding partners Cohen and Perfetto have been
named to the New York Metro Super Lawyers list for the
eleventh consecutive year.
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