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Legal Ramifications of Twitter

Published 24.05.13 at 10:24

Recently there has been a growing awareness of the legal consequences of using Twitter, largely focused on tweets from individuals acting in a private capacity. However, these arguments are equally applicable to business users of Twitter.

Before Tweeting

1. Does the information constitute personal information?

Personal information is:

  • private information;
  • of an identifiable person;
  • whether or not that person is named expressly.

Examples include:

  • contact details;
  • racial origin;
  • financial information.

Tweeting personal information may constitute a breach of the Data Protection Act 1998.

2. Does the information contain confidential business information?

If a tweet contains confidential information about your business, it effectively publishes this information into the public domain meaning that the law of confidence no longer protects that information.  Unless the information is protected by another means, competitors will be able to use it without fear of recourse and consequently the business' competitive advantage may be lost.

3. Employees

Employers need to consider the potential negative impact on their business of employees' tweets on their personal Twitter accounts. A Twitter usage policy detailing topics that employees should avoid tweeting about could address this issue.

Employees should bear in mind that their personal tweets could have a detrimental impact on their career progression and could even constitute grounds for dismissal.

Marketing Standards

Twitter is an increasingly popular marketing tool for businesses. Whilst Twitter is fairly unregulated, general marketing principles still apply. A good example is the CAP Code. This requires marketing communications to be legal, decent, honest and truthful. Businesses may also incur industry-specific regulatory requirements.

Intellectual Property

Twitter's terms and conditions state that Twitter does not own the intellectual property rights of users' content; this should not be taken to mean that the Twitter user owns those intellectual property rights.  Traditional intellectual property rules will apply, irrespective of Twitter's terms and conditions.  This interaction is complex and professional legal advice should be sought if this area is of particular concern to the business.

A common cause for concern for most businesses is impersonation of the brand through Twitter. This can be avoided with relative ease and at a nominal cost by securing a Twitter account before any other third party is able to do so i.e. creating the URL address that incorporates the brand or new product of the business (www.twitter.com/[brandname]). This protects the brand or product, because Twitter account names cannot be duplicated. Note however, that to benefit from this protection the Twitter account must be used as an inactive account may be suspended or removed. 

Additionally, once a Twitter account has been created it is important to ensure that ownership of the account should be vested in the business and not the employee designated to use it. Failure to take this precaution could result in the employee claiming ownership over the account and its subsequent followers.

Defamation

A tweet may give rise to a claim in libel if it:

  • lowers the reputation of an identifiable individual or company;
  • in the minds of right-thinking people;
  • whether or not the individual or company is expressly named.

This is because tweets constitute published sources of information.  For example, a tweet that diminishes a competitor's product could be considered libelous, which may result in a damages payment to the competitor.

Misleading Tweets

To comply with the CAP Code businesses should not tweet advertisements that are:

  • inaccurate;
  • ambiguous; or
  • exaggerated.

Tweets containing such information will not only infringe the CAP Code but may also result in liability. The degree and type of liability is dependant upon the circumstances. The following may be applicable:

1. Misrepresentation: if a tweet misleads customers into believing something that proves to be false.

2. Fraud by false representation: if a tweet states something which the business knows is or might be untrue or misleading, and by doing so intends or hopes to make a gain or cause the customer a loss.

3. Misleading action: if a tweet deceives a customer into entering into a transaction that they would not have done so otherwise.

If any of these become applicable the sanctions range from damages to imprisonment.

Conclusion

Checklist for protecting your business on Twitter:

1. Set up a Twitter account using your brand name and/or product name;

2. Make sure the business owns the account;

3. Create a Twitter usage policy for employees;

4. Be aware of applicable marketing regulations (e.g. the CAP Code). 

Before tweeting consider whether the tweet:

1. contains personal or confidential information;

2. is defamatory; and

3. contains a false or misleading advertisement. 

Authors: Suzannah Pearce, Richard Glover and Armand Edwards, students at the University of Law

Photograph (some rights reserved) by futurowoman

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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