The Social Media Law Bulletin is back!
The ongoing interest of our readers as well as the increasing impact of social media led us to re-launch the Social Media Law Bulletin. We will be bringing you coverage of one or two items approximately each week, but in the meantime, we thought we would give you a brief summary of some of the most significant social media stories from 2015:
Schrems v Facebook
Facebook earned the top spot in our social media impact list, due to a court ruling that only indirectly affected it. In October 6, 2015, the European Court of Justice ruled in a case involving an Austria law student, Maximillian Schrems and his claims against the Irish Data Protection Commissioner (Case C-362/14). Mr. Schrems filed a complaint with the Irish Data Protection Commissioner regarding Facebook Ireland’s transferring his data to the United States. The Irish Data Protection Commissioner declined to investigate his complaint, finding that the EU/US Safe Harbor –to which Facebook had certified its compliance—meant that the European Union had already determined that the transfer was permissible under European requirements. The European Court of Justice disagreed, and struck down the EU/US Safe Harbor as part of its decision.
As a result, 4400+ multinational businesses, including Facebook, are no longer able to transfer data personal data of European citizens from the EU to the US under the Safe Harbor. Many companies implemented various work-arounds, such as adoption of “model clauses” [the EU-approved contract forms for data transfers] or commencing the process for approval of “binding corporate rules” [privacy rules within an organization that would need to be approved by EU regulators] The European data protection authorities announced that they could not commence enforcement against companies until January 31, 2016 in order to give companies time to adjust to this decision. In the meantime, US and EU negotiators are attempting to resolve concerns and to negotiate a new agreement, called “Safe Harbor II.”
Who owns your Instagram content? Part 2
New York artist Richard Prince created a stir by selling canvasses featuring other people’s Instagram photos for around USD100,000 each. The art works were first exhibited at the Gagosian Gallery in New York during 2014 and were sold during 2015. Prince takes screenshots of images uploaded by other people on Instagram and adds his own comments below those already there. He then prints the entire screenshot onto a large canvas. DoeDeere, a subject of one of the photos which sold for USD90,000, has confirmed that Prince did not seek permission before using one of her images. Photographer Donald Graham issued cease and desist letters to Prince and the Gagosian Gallery. On 30 December 2015 Graham filed a complaint against Prince for copyright infringement.
Prince is notorious in the art world for “appropriating” other people’s work as his own, testing the boundaries of copyright and fair use. In 2013, a US court ruled that his art work which was based on earlier photos from photographer Patrick Cariou constituted fair use. See our previous post “Who owns your Instagram content” for a breakdown of Instagram’s terms relating to copyright.
The tweeting power of the #Hashtag
Students at universities across South Africa rallied behind the hashtag #FeesMustFall towards the end of 2015. This strong movement was a student protest against tuition fee increases. Through the use of social media, especially Twitter, the movement gained traction and spread across the country resulting in the President announcing a 0% fee increase for 2016. Unfortunately parts of the protest turned a little violent resulting in damage to some university property. This led to universities taking legal action against the movement to ban the student protests and disruption on university campuses. The legal papers cited the hashtag ‘#FeesMustFall’ as the second respondent. This left legal minds wondering if this could be the first hashtag cited in court documents. The cited hashtag represented an actual movement created using the hashtag as its name, #FeesMustFall.
However, the protests have continued into 2016 as the protesters use the momentum from last year to continue the movement and have shut down orientation programs and registration at certain universities.
The Rise of Uber
Uber has continued its growth through 2015 and is now estimated to be worth more than $60 billion, offering the service in 68 countries around the world. But along with profits and consumer conveniences, this disruptive technology also brings with it a host of potential legal issues, given the regulatory and legal frameworks involved. This past year was no exception, as Uber faced several challenges, including a legal battle in California over whether its drivers are employees or independent contractors, regulatory issues in New York that may eventually lead to a cap on Uber’s expansion, and a legal challenge in London with the high court ultimately ruling that Uber’s app is not a taximeter requiring a license, to name a few.
Although Uber won some of its battles in 2015, it has a long road ahead. As governments and regulators attempt to balance the consumer benefits, a free market, increased innovation and jobs against the potential environmental impacts, a slow death for the existing taxi industry, and labor and employment issues, Uber will likely face a continuously changing legal and regulatory landscape that will challenge how it conducts business. Other peer-to-peer sharing services and companies, such as Airbnb, are likely to face a similarly tumultuous situation. These “sharing economy” firms and those who choose to invest in them or work for them should be aware of the multitude of issues on the horizon for social media apps and peer-to-peer networks, so that they can adapt their business, investment, and employment plans to adjust to the inevitable challenges and changes ahead.
In March 2015, a social media war broke out between two Australian YouTube fitness personalities. “Bikini Girl” aka Kayla Itsines, founder of the Bikini Body Guide, brought the battle to the courtroom in Adelaide, suing Leanne Ratcliff, known online as “FREELEE the Banana Girl” (and known for eating 50 bananas a day) and her boyfriend, Harley Johnstone (aka “Durianrider”). Allegations of defamation and online ambush marketing were made against the pair after they had posted numerous YouTube videos criticizing Bikini Girl with claims that her fitness and nutrition program encouraged eating disorders and that her partner was on steroids. Freelee and Johnstone denied the allegations against them, standing firm on their right to free speech.
What was at stake in this war? Collectively, the parties have over 3 million followers on YouTube, Instagram and Facebook. For Bikini Girl, it was about brand protection, reputation and retaining the empire of followers she had built, while Freelee and Johnstone were looking to increase their publicity under the guise of free speech. During the feud, the pair caused their followers to flood Bikini Girl’s social media accounts with criticizing posts and support for their cause. Freelee’s followers even showed up at the court to show their support for the Banana Girl.
Itsines successfully obtained an injunction to have the criticizing videos on YouTube taken down. The pair only partially complied with the injunction by changing the privacy status on the video instead of removing them from the online space. The YouTube stars were quick to call a truce after negotiations for settlement put a halt to the trial. Freelee and Johnstone agreed to remove all YouTube videos criticizing Itsines and to refrain from speaking about her or her partner in any further videos or other media. The settlement was without any financial penalty.