According to a 2016 study published by Eurostat, the statistical body of the European Commission, 39% of EU companies now use social media to communicate and 3/4 of these companies are using social media to build their image and to market products.
The use of social media is of course more significant in certain sectors, but the exponential growth in the use of social media by companies is unquestionably a global trend.
The reach of social networks is now so vast that it has impacted the way people access and consume news. The celebrated success of “Instant Articles” by Facebook reveals that its members are keen to access their content without leaving their social network.
Some digital native companies are now focussing the bulk of their digital communication efforts on social networks, having little to no interest in maintaining and updating their own website.
Since the possibilities offered by social networks and their reach on consumers are unquestionable, companies must remember that important legal consequences exist between an online presence on social media and on a proprietary website. We look at a few key consequences of going “all in” with social platforms below.
Ownership of social accounts
There is no doubt that a company can legitimately claim ownership on its website and domain name but can this same company claim ownership on its social media account?
The answer is not straightforward. Despite the huge amount of persons and companies with access to these social networks today, they remain private spaces. From a legal perspective, it is possible to consider that any account or page created on a social platform remains under ownership of the platform.
Twitter terms and conditions appear for example unambiguous on the subject: “All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Twitter and its licensors”.
Not all platforms however claim full ownership on accounts. For example Facebook terms and conditions only provide that Facebook’s permission is required to transfer account between users: “You will not transfer your account (including any Pace or application you administer) to anyone without first getting our written permission”.
The uncertainty regarding ownership over social accounts however remains, and will have an impact when assessing the valuation of a company. This can be problematic given the growing importance of social accounts in the valuation of intangible assets.
Ownership of published contents
However, when posting content on a social platform, the licensing rights associated to such content will be covered by the terms and conditions of the platform. But what do these licensing rights involve? Generally speaking, a royalty-free, transferable, sub-licensable, worldwide and sometimes perpetual right to use any published content.
What does this mean in practice? By posting content on a social platform you are not only authorising the social platform to use your content for any purpose, including for commercial purposes, but this also means that the social platform can license your content to any third parties without having to request your permission.
The idea of a social network using generated content for commercial purposes seems however far from reality. Most of these standard clauses are just darted to allow the platform to provide its service and manage content posted on the network without facing any intellectual property liability.
Still, this license automatically given to social networks over user content should be taken into consideration by companies who are used to monetising the use of their content, when drafting their own license agreement.
The ability to monitor content
Leaving the question of ownership aside, what can be published and how is content monitored on social platforms?
Most social platforms prevent their users from posting what they consider to be unlawful content, for example content that is violent, discriminatory, pornographic or hate speech. One could legitimately argue that such content is unlawful in any event and would therefore not feature on any proprietary website of any brand. Such an assumption is however only partially correct. Social platforms may have an extensive interpretation of what constitutes unlawful content and such an interpretation can sometimes be different from restrictions imposed by specific national law.
In the case of intellectual property rights, it is the platform and not the publisher or editor who will at first instance assess whether content breaches the right of a third party and should therefore be taken down. The interpretation by social platforms of intellectual property rights and what, for example, constitutes freedom of speech or fair use may be different from the rules applicable under national statutory and/or case law.
This issue is essential to some market players for whom a significant part of their revenue depends on the daily content they produce. Indeed, social platforms may decide to withdraw content or more seriously shut down the responsible page or account not authorised under their standards.
It is therefore essential for brands in their digital communication on social networks to be familiar with the internal policies of these social platforms when posting or letting other users post content on their social accounts.
Neutrality of social platforms
A fundamental right at the root of the Internet is the concept of “net neutrality”. Net neutrality is the simple principle (yet very complex in application and enforcement) that internet service providers and governments regulating the Internet must not discriminate any communication transmitted through the Internet over another, competing communication.
This principle has evolved in recent years to what is referred to the “content layer” of net neutrality applicable to internet platforms. Indeed, to access a website and content, readers will mostly use search engines, essentially Google. To ensure that one website is not discriminated against in favour of another, national laws tend to regulate search engines to ensure neutrality in the search results and clear information to users on which constitute promoted results.
It is not entirely clear whether social platforms are similarly regulated at this moment. Some showcase the efficiency of their algorithms whereby they only show users content that is supposedly relevant to them. This filtering of content by social platforms is applicable to advertising but also to news or any other type of content.
Companies should also understand that a social network is a media in itself and it is thus legitimate for such network to implement filtering algorithms to enhance the experience of their users. Companies should not expect the same level of neutrality expected from search engines when they post content on social networks. This may however evolve in the near future due to recurring debates, notably in Europe, to ensure there is more neutrality from social platforms.
What law applies?
This last issue runs through the rest of the issues discussed above. There is little doubt that a French website directed to French users, for example, will be covered by the laws of France. But what about a social network page in French directed to French users?
The simple answer to this question is the governing law identified in the terms and conditions of a social media platform; however, national courts may overrule this choice of law when mandatory provisions of national law are applicable.
So which law should companies have in mind when assessing the strengths or their legal position?
Perhaps none, or at least not national law. Again, the platform remains a private space where the contract is the primary applicable law, in other words the terms of service and policies of the social media platform.
The shifting of the web to social media platforms is inevitable but companies and lawyers should begin to learn Facebook Law, Twitter law, Snapchat Law etc… before trying to apply national legal concepts, that may not be the rules followed by platforms, when they need to assess what users can or cannot eventually do on their platform.