Every day, hundreds of millions of people use social media to share their thoughts about everything that is happening around them. The most popular social media sites do not have simple ways to search for and organize content, so users turned to the hashtag to solve the problem. Hashtags are words or phrases prefixed with the hash sign (#) and provide a means of grouping messages together. When you click on a hashtag (e.g. #socialmedia), you can see what other people are saying about that particular topic. When a hashtag becomes extremely popular, it can “trend” and attract more individual users to the discussion. Last month, Facebook announced that it was introducing hashtag functionality on its social networking site, similar to other services like Twitter, Instagram, Tumblr and Pinterest.

The increasing use of hashtags in social media will continue to offer businesses certain benefits, including increased brand exposure and advertising, customizing hashtag searches to promote new products and services, discovering your target consumer market and becoming a part of trending conversations. At the same time, the proliferation of hashtags can raise legal questions in the area of defamation and trademarks that are likely to be explored as the courts continue to grapple with advances in technology.

For example, could a user be liable for defamation by using a hashtag that links to a discussion containing defamatory material? Hashtags are essentially hyperlinks to a larger discussion that includes comments from other users using the same hashtag. The issue of whether hyperlinks that connect to allegedly defamatory material can be said to “publish” the material is a live issue. The Supreme Court of Canada considered this issue in the case of Crookes v. Newton2 and concluded that while a hyperlink, by itself, cannot amount to publication even if the hyperlink is followed and the defamatory content is accessed, liability can exist depending on the context in which the hyperlinking is made. See Crookes v. Newton, 2011 SCC 47.

Trademarks can be used as hashtags in an effort to increase brand exposure and advertising, but there is also the potential for increased instances of trademark infringement and/or depreciation of goodwill of another trademark. The risk of causing confusion by misleading consumers or depreciating the goodwill of someone else’s trademark may increase as a result of the ease at which hashtags allow information to flow and to be organized.

Although there are many benefits to be gained from the increasing use of hashtags, caution must be exercised in their use, because in many instances it is impossible to control the flow of information once a hashtagged conversation begins.

Daniel Daniele (daniel.daniele@nortonrosefulbright.com / +1 416 216 2317) a lawyer in Norton Rose Fulbright Canada’s Intellectual Property Practice.