by Punch
(Dtalkshop hosted a session of the Wetin Lawyers Dey Do… Sef? workshops as part of Social Media Week, which held in Lagos and several other cities across the world, from 18th to 22nd February 2013. The lead lecture at the session was delivered by Mr. Adeniji Kazeem, Principal Partner of Adeniji Kazeem & Co.,strong>
This paper seeks to bring to the fore and address the possible legal implications of the deployment of social media tools by individuals and companies alike.
A quick look at what “Social Media” (SM) is becomes important in moving forward. Social Media refers to the internet tools that people use to publish, converse and share content. These include blogs, wikis, podcasts and sites where you might share photographs, bookmarks and videos. Examples, as we all know include Twitter, Facebook, LinkedIn to name a few.
It is called social media because it supports conversations, connections and development of new relationships unlike the traditional media (TV and radio) which usually offer one way communication only — broadcaster to audience.
Social media has not only changed the way we communicate with friends, but is dramatically changing the way we work as well. Individuals and organisations that employ social media face several information security legal issues which are briefly discussed below:
Privacy
The use of SM networks has thrown up the issue of how much information users are willing to make available in the public domain. One of such includes the unauthorised use by third parties of other people’s information. Users of SM networks run the risk of breaching the right to privacy of others where they don’t seek and obtain releases before using certain materials of others.
Although the English Common Law does not recognise the tort of invasion of privacy, the right to privacy is enshrined in the Constitution of the Federal Republic of Nigeria (CFRN) 1999, Cap C23, Laws of the Federation of Nigeria (LFN) 2004. Section 37, CFRN 1999 provides for the “Right to private and family life” and states that “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communication is hereby guaranteed and protected”.
It is clear from the above, that an action can be maintained against a user of SM network who uses, without authorisation, the private communication and confidential information of another. These could include posts, videos, discussions, etc. Another issue here borders on the tracking of online activities of users by third parties or strangers. SM networks give out information about their users to third parties without the consent of such users.
While commenting on a 2010 plan by Facebook to disclose users’ home addresses and personal phone number, Marc Rotenberg, Executive Director of Electronic Privacy Information Centre (EPIC) in the US said “Facebook is trying to blur the line between public and private information. And the request for permission does not make clear to the user why the information is needed or how it will be used”.
Often times, SM networks have their Privacy Settings too confusing which could be aimed at increasing the amount of public information on these SM networks and this in turn leaves users vulnerable. These SM networks risk exposing themselves to lawsuits for liabilities arising from their unauthorised acts.
In the 2011 landmark case of Fraley et. al. v. Facebook, Inc., et al. that claimed Facebook misappropriated the Plaintiff’s name in paid advertisement without first obtaining the Plaintiff’s consent in violation of state law, Facebook was forced to agree to a deal which:
Provides a mechanism whereby users can discover if they are appearing in Sponsored Stories or advertisements; Provides a mechanism whereby users can prevent the future appearance in advertisements by that advertiser; Changes the terms of use, known as the “Statement of Rights and Responsibilities”, to inform users they can be used in Sponsored Stories; Gives parents control over whether their minor children appear in any advertisements at all; Gives minors the ability to completely opt out of all advertisements while they are minors; Allows affected users to file a claim that may result in an award of $10.
On December 3, 2012, Judge Richard Seeborg of the California District Court preliminarily approved the Amended Settlement Agreement submitted by the parties. On January 2, 2013, notices of the proposed settlement began to go out to approximately 125,000,000 Facebook users whom Facebook had identified as potentially being in the class. The class was defined as: All persons in the United States who have or have had a Facebook account at any time and had their names, nicknames, pseudonyms, profile pictures, photographs, likenesses, or identities displayed in a Sponsored Story at any time on or before the date of entry of the Preliminary Approval Order.
In addition, a Minor Subclass was defined as: All persons in the Class who have or have had a Facebook account at any time and had their names, nicknames, pseudonyms, profile pictures, photographs, likenesses, or identities displayed in a Sponsored Story, while under eighteen (18) years of age, or under any other applicable age of majority, at any time on or before the date of entry of the Preliminary Approval Order.
The proposed settlement created a Settlement Fund of $20 million. From that amount, court-determined attorney fees, costs, and class administration costs will be deducted. The remaining amount is to be divided among the class members who file valid claim forms. If too many people file claims and the amount per person is significantly diminished, the settlement proposes to divide the Settlement Fund, less other deductions, among named non-profits which ostensibly are involved with, and will use the money for, the public good regarding social media education and outreach as it relates to advertising, minors, and privacy, in accordance with the Cypres doctrine of the American legal system.
•Adeniji Kazeem is the Managing Partner at Adeniji Kazeem & Co. He has an LLM in Information Technology and Telecommunications Law from the University of Strathclyde Glasgow.
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