Twitter is now an accepted business communication channel for many organisations. Whether engaging with customers, building a community, dealing with complaints or distributing news both companies and managers are using it on a daily (or even hourly) basis. But what are the top ten legal risks you need to be aware of when it comes to tweeting from or to the UK?
- Defamatory Tweets Defamation law protects a person's reputation, and it is an offence to communicate defamatory remarks where that communication takes some form of permanence – and at least one UK court has given the impression that tweets have a form of permanence. The test: If a tweet lowers a person's standing 'in the estimation of right-thinking members of society' it will breach libel laws.
- Harassing Tweets UK law protects against harassment, and this can include the publication of words that cause 'alarm' or 'distress'. Two or more tweets are necessary for a claim to be made, as it involves a 'course of conduct'. Harassing tweets could result in a claim for damages for anxiety or financial loss, fines or imprisonment for up to six months. The test: Tweets which the 'reasonable person' would conclude cause alarm or distress may amount to harassment.
- Malicious Tweets Tweets made within the intention of damaging another's business, goods or services through false statements, or which are reckless with the truth will break the law. A maliciously false tweet could result in a claim for damages for loss and for further compensation for causing distress and 'hurt feelings.'The test: Does the tweet have the intent to injure another's commercial interests, or display recklessness as to the truth?
- Menacing Tweets A tweet that is grossly offensive, or of an indecent, obscene or menacing character, will offend the Communications Act 2003, resulting in a fine or a prison sentence of up to six months.The test: If a tweet could create fear or apprehension in the minds of anyone who may reasonably be expected to see it the tweet could be considered a menace and an offence.
- Deceptive Tweets (and other misrepresentations) A tweet containing a false statement that induces another person to act on it may offend laws against deceit and the making of misrepresentations. Untrue tweets in a commercial context can result in damages claims and prison sentences of up to two years.The test: Is the tweet deceptive in nature or likely to deceive?
- Impersonating Tweets An impersonator who opens a Twitter account could be exposed to a claim for fraud if the person who has been impersonated suffers loss or damage as a result. This can result in criminal charges with a penalty of up to 10 years imprisonment and fines.Test: Are you providing a misleading or untrue representation as to a person's identity on Twitter?
- Threatening Tweets A tweet could amount to an assault if the person to whom it was directed has a genuine belief that physical harm is imminent as may a series of tweets which cause psychological damage. Criminal sanctions would apply in these cases. The tweet must however be more than "idle abuse" to offend the law of intimidation. The test: Is there an intention to cause harm or intimidation?
- Tweets revealing personal or confidential information Data protection laws protect against processing of personal information without permission. It is unclear whether statements made on Twitter fall outside data protection laws, but if they do not, there is a risk if consent is not obtained before revealing another person's personal information. Particularly in the employer-employee context, a person may be bound to keep information of another confidential. A tweet breaching these obligations could result in a claim for damages or an account of profits for any income from the exposed information.Test: Does the tweet reveal personal details about another person without their consent?
- Copied Tweets Copyright law has changed dramatically over the last few years. Generally, UK laws tended to look at whether a substantial part of a copyright work had been reproduced without consent. However a recent European Court of Justice (ECJ) decision, which UK law must conform to, may mean that isolated sentences must be looked at disjunctively from a whole copyright work in order to determine whether an infringement has occurred. Therefore a tweet could offend copyright law if it reproduces even part of an isolated sentence from a copyright work. Claims for damages for loss suffered and criminal charges with prison sentences of up to two years can result from a tweet that infringes copyright law.The test: A tweet which reproduces the work of another without consent will offend copyright law if that work gives evidence of another's creative choices in arranging words, images or sounds.
- Branded Tweets and Hashtags Hashtags are extremely useful in allowing users to monitor relevant conversations taking place on Twitter. There is a risk, however, that combining a hashtag with the trade mark of another person could result in trade mark infringement. The test: Does the use of a hashtag create a likelihood of association or confusion with the products or services of a trade mark owner?
Luke Scanlon is a technology law expert at Pinsent Masons.