In the age of wireless networking, social networking sites provide the necessary networking hub required, whether they provide free social networking or not, must consider the following main legal issues:
The EU Data Protection Directive and Data Protection Act 1998 (DPA): the issue of compliance with the DPA affects companies, providers and of course users specially if minors. Although users have the opportunity to upload their profiles and to share information about them online, they are not always aware that that information posted may be used by the Social Networking Sites provider and disclosed to third parties for commercial reasons including marketing or advertising. Of course, the issues of fraud and safety (especially children’s) are of equal importance.
Generally, privacy and data protection issues will be addressed in the terms of use of website, privacy policy or other bulletin posting documentation of the Social Networking Site provider. Such documents must be written in a user-friendly way and be understandable by non-legal persons and aptly incorporated in the use of the site. Social Networking Sites providers must also remind users that uploading information about them or other individuals may affect their privacy or data protection rights and advise users that any third party information or photo that they upload is done with that third party’s consent.
The data posted (when personal) is protected by the DPA which requires that:
The users are provided with certain fair processing information about who they are, what they will process the information for, taking into account the specific circumstances;
Information is collected only for specified and lawful purposes;
Information is kept safe and secure;
Information is only kept for as long as it is necessary for the purpose for which it was collected.
The Defamation Act 1996 (DA): the DA is applicable both for users and providers of Social Networking Sites. In fact, when an individual uses his/her online profile to make untrue and malicious statements about another individual, he/she could be liable for defamation and also expose the provider of the Social Networking Sites allowing the defamation to take place, to a potential liability for publication even if the statement had a limited exposure and effect.
The DA and the Electronic Commerce Regulations 2002, however, exclude liability of intermediaries (which include Social Networking Site Providers) on the following criteria:
The person was not the author, editor or publisher of the statement complained;
Took reasonable care as to its publication;
Did not know and had no reason to believe that what it did caused or contributed to the publication of a defamatory statement;
For hosting (under the Electronic Commerce Regulations).
The Copyright Designs and Patents Act 1988 (CPDA) and theElectronic Commerce Regulations 2002 (E-Commerce Reg.) : the technological advancement of creating and sharing content online, means that many users upload content they have created (referred to as “User-Generated” content). Whereas this poses the question of the rights or indeed liabilities for the providers of the Social Networking Site, it also raises the question of infringement in the event of third party owned (or partially owned) content. For example, if the provider of the Social Networking Site does not make adequate provision in its terms, it could infringe the user’s rights by displaying and distributing the user’s content online.
In fact, under the CDPA only the rightful owner of copyright (or a person with the owner’s authority) has the right to:
Perform, show or play the work to the public ( which could be infringed as the provider copies, stores and streams the user’s content across its network or internet); and
Communicate the work to the public (which again could be infringed in the event other users stream or download content that other users have placed on the provider’s server).
Providers of Social Networking Sites may also be liable for infringement in the event the users upload third party content without the third party’s consent. In fact, the provision of means for uploading infringing content on the site and allowing other users to stream it or download it could be seen as authorizing infringing content. In this case, the provider must make it quite clear in its terms and also suitably placed disclaimers that it does not approve, sanction or tolerate copyright infringement.
The E-Commerce Reg. provide that a provider of a site will not be liable for copyright infringement, if:
It can show that the user posting the content was not acting under the authority of the provider;
The provider had no actual knowledge of the unlawful activity or information; and
The provider acted expeditiously to remove the unlawful content as soon as it became aware of the infringing character of the content.
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