Me, Myself & ‘AI’

Human interactions with technology

In the past few years, the use of social media has increased rapidly. A key feature of social media platforms and social media apps is the ability to interact with other people in ways that were not thought possible in previous generations.  With the click of a button, someone from the other side of the world can appear on a screen in front of you.

Technology and social media have not just given rise to platforms that facilitate human-to-human interaction: recently, advancements in technology have led to a rise in a new type of social relationship: human-to-computer interaction.  The interactions we have with technology are not just based on user input.  Technology has learned to respond to people.  It can communicate with us.  It can perform tasks.  It can learn our habits and tailor services to our needs.  It can learn to identify us.  It can assemble information and provide solutions to problems.  This ‘artificial intelligence’ (or AI) has become a key component in our daily social interactions.

In a previous blog, we wrote about how AI can be used with social media content through, for example, massive collection of user-generated content and facial recognition systems that can identify faces and other images.  We also discussed how social networking companies are using AI through acquisition of large amounts of user-generated content and other data.

Legal issues surrounding AI

There are many legal issues that should be considered by individuals who use AI and by social networking companies that seek to incorporate AI into their business.

Privacy rights: AI can be used to collect massive amounts of data. This data can contain sensitive information about an individual, such as: their identity, home address, preferences and habits, and conversations with others.  Given the vast amounts of identifying information that can be stored and used, it is important that privacy rights are clearly defined and respected in accordance with applicable privacy legislation.

IP rights: One of the major benefits of AI is that it has fostered a new age of technological advancement. It has increased creativity and innovation.  At the same time, it also raises intellectual property issues such as the impact of AI on IP ownership rights and on the ability to obtain and retain those rights.

  • Ownership rights: The use of AI can lead to questions about who owns the rights to user-generated content. In the absence of any agreements, does the user of the service employing AI own all of the rights that may arise from any user-generated content? Or does the company offering AI services obtain the rights? Or is there a sharing of rights?
  • Acquisition and retention rights: When AI is used to assist with innovation, what impact could that have on the ability to obtain IP rights, such as copyright or patent rights? For example, if a user seeks patent protection or has a patent that was based on the assistance of AI, could they be denied or lose protection on the basis that the AI rendered the purported invention obvious?

Being prepared in the era of AI

Individuals and companies who wish to take advantage of the benefits of AI should be fully prepared:

  • Agreements: Agreements are important to help define how IP rights are to be treated or how a user’s personal information is to be handled in accordance with privacy laws.
  • Policies and training: Policies and training are important to make employees aware of the issues surrounding the use of AI and to educate them on how to ensure that privacy and IP agreements are implemented appropriately.

FTC and Social Media Influencer Endorsements

On September 7, 2017, the U.S. Federal Trade Commission (FTC) announced that it had entered into a proposed consent agreement with two individuals and their company that allegedly ran an online gaming community website that allowed users to gamble virtual currency.  According to the FTC complaint, the two individuals promoted the gaming site and not only failed to disclose their ownership interest in the site or that they were playing with company money, but they also paid other social media influencers between $2,500 and $55,000 to promote the site.

As we had previously written, in the Spring of 2017, the FTC issued 90 letters to social media influencers and the companies they may have endorsed on Instagram.  The letters reminded the recipients that the FTC expects any “material connection” between an influencer and the provider/service/company to be conspicuously disclosed.  A “material connection” is a “a connection that might affect the weight or credibility that consumers give the endorsement,” which can be a direct payment, free products, an ownership interested in the company, or even a family connection to the company.  As part of the FTC’s September 7 announcement, the FTC also stated that it sent warning letters to 21 social media influencers who had received the Spring letters.  (The FTC did not disclose the names of the influencers or companies that received the warning letters.)  Consequently, the FTC may be bringing additional actions in this area. Continue reading

Data processing and storage: Protection of Personal Information (POPI) and your social media account

The South African Protection of Personal Information Act, 2013 (POPI), which protects the processing of personal information by public and private bodies, is much like similar UK and EU legislation. It was signed into law in November 2013 but is not in full effect yet. Once the Act is made effective, companies will be given a year’s grace to comply with the Act, unless this period is extended as allowed by the Act. Continue reading

Personal Brands, Social Media, and the Lanham Act

On July 14, 2017, a federal trial court ruled on an interesting issue: could models and actresses, whose popularity on social media was a strong factor in determining their earning capacities, maintain a lawsuit under the Lanham Act against a “swingers club” that used their photos without consent?  In a case where social media played a prominent evidentiary role, the court permitted the models’ claim to proceed, and denied the defendants’ motion to dismiss.  (Lancaster v. The Bottle Club, LLC, Civ. No. 8:19-cv-634-T-33JSS (M.D. Fla. July 14, 2017) (2017 WL 3008434). Continue reading

Social media: life after death?

Have you considered what you would like to happen to your social media accounts when you die? Where the platform gives you options, have you selected one? A while ago we wrote about what happens to your social media account when you die.

Many platforms, including Facebook, Twitter, Instagram and LinkedIn have different policies about what will happen to a deceased person’s profile. Since our last post, some of these policies have changed. Here is the current status as of the date of this post: Continue reading

Legal Implications of Emoji Use

Emoticons – the often whimsical hieroglyphics that most so affectionately know as “emojis” – have become ubiquitous in modern digital communication not only by individuals but also by corporations as part of their advertising and marketing campaigns on social media. Emojis have also begun appearing as evidence in court cases.

A short, but fascinating, discussion between several experts in the fields of computer science, hieroglyphics, and social media of the impact emojis have had on our language can be found here. The crux of the discussion is that emojis can have a profound impact on the way we communicate. Essentially, the inclusion of a single emoji can alter the meaning of the accompanying text. Alexandre Loktonov, AHRC Fellow at the Kluge Center and an expert on hieroglyphics, likens emojis to what are known as “deteriminatives” in Egyptian hieroglyphics, or “signs, which, without having a phonetic value of their own, can ‘color’ the meaning of the preceding word or phrase.” In recent years, the nature of emojis has been addressed in several lawsuits, proving that courts may be recognizing the importance these characters have begun to have with respect to our language and communication. Continue reading

Legal chatbots: something for nothing?

In June, we introduced the topic of chatbots and highlighted some key risks and concerns associated with this growing area of technology.  One business in particular, DoNotPay, made headlines recently by announcing that it would begin building legal chatbots for free.

The claim? In a July 14, 2017, posting to the online publishing platform Medium, Joshua Browder, founder of UK-based DoNotPay, writes, “Starting today, any lawyer, activist, student or charity can create a bot with no technical knowledge in minutes.  It is completely free.”  Sound too good to be true?  To be sure, DoNotPay is not the first company to develop law-related chatbots—these bots are already popping up all over the world.  But because this technology is still fairly new, chatbots that are attempting to automate services previously performed by licensed attorneys will almost certainly attract scrutiny.  Continue reading

How Animal Influencers Are Changing the Way Brands Advertise

At this point you are probably familiar with the world of social media influencers. You might follow several on Instagram, or maybe your company partners with them to promote its products. But have you realized that the most valuable influencers may not even be human? This post will focus on animal influencers – they are cute, they come in a variety of species, and they are being paid to advertise products via social media.

Why animals?

Aspiring animal influencers can rise from obscurity to fame in an instant – all it takes is one viral post. The demand for cute and funny animal content is certainly present. As the Brand Protection Blog has previously reported, an estimated fifteen percent of all web traffic is connected to cats. Continue reading

Stay safe on social media – New ACCC guidelines

Businesses shelling out big bucks for prime advertising space are used to paying close attention to content, for the sake of the bottom line as well as out of respect for consumer law. However, it may not feel as natural and cost-effective to apply the same scrutiny to an Instagram caption. Why invest the business resources when teenagers worldwide can master the art?

The Australian Competition and Consumer Commission (ACCC) has recently issued new social media guidelines for businesses which emphasise the answer repeatedly: as far as the regulator is concerned, businesses have the same responsibilities on social media as they do in all other marketing channels. Consumer protection laws (including, for example, the prohibition on conduct that is misleading or deceptive, or is likely to mislead or deceive), apply to Snapchat stories and ads in national broadsheets alike. Continue reading

The Battle for Copyright Protection in the Digital Era

The age of the Internet poses many new challenges to those individuals seeking to protect and enforce their intellectual property rights online. As the Federal Court of Appeal in Canada recently stated: “Under the cloak of anonymity on the internet, some can illegally copy, download, and distribute the intellectual property of others, such as movies, songs and writings.”  (Voltage Pictures, LLC et al. v. John Doe #1 et al., 2017 FCA 97 at para. 1 [Voltage Pictures].)  As a result, Canada has slowly began modernizing its copyright regime in order to allow the cloak of anonymity to be lifted and the identity of alleged infringers to be revealed.  (See e.g., Copyright Modernization Act, S.C. 2012, c. 20, s. 47.) Continue reading

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