Individual Rights Archives - ALAC

Think before you post: Considerations for when posting content on social media platforms

Tyler Kowalchuk — Thu, 25 Apr 2024 21:27:32 +0000

Written by Sarah Zivoin with contributions from Tony Duarte and Marian Hebb

Think before you post: Considerations when posting content on social media platforms

With the increasing popularity of social media platforms as a means for creative expression and sharing of ideas, invariably questions arise as to what right do you have in the content you post and in other content you may find online. This article will break down factors for consideration before you post content and afterwards.

Before you post

When using mainstream social media platforms, you agree to certain terms and conditions of use. These terms and conditions may change over time and are posted on their sites. One common requirement to meet when posting is that you have the right to post the content. This requirement seeks to prevent claims of copyright infringement, but there are additional concerns. Consequently, before you post, ask yourself:

Does your post have content that you did not create and that may use the intellectual property or other rights of others? If yes, you may need to obtain approval from anyone who created, owns and has intellectual property or other rights to that content. For example, if you use music in the background of a video post that was not provided and authorized for use by the social media platform, you may need to obtain permission to use copyrights in the music. Some social media platforms may enter into mass licence agreements with the songwriters and music publishers that have the rights to a catalogue of music as well as mass licenses with the record companies that control rights to a catalogue of sound recordings. These mass licenses may include the music and recordings you want to use on that platform. So, if you are using music clips authorized from the social media platform, you may not need to obtain any additional permissions from the songwriters, publishers and record companies that are rightsholders – but if in doubt you should check to see whether you need to obtain a licence for such rights.

If creating video content, it is easy to accidentally include intellectual property owned by others or the visible identification of individuals or businesses simply by being unaware of what is in view. In addition to the issue of obtaining a license to use the copyright in such things as photographs and paintings depicted in your video, you should also consider whether there may be invasion of privacy of individuals, whether they are featured or are merely identifiable in the background. Any of these kinds of use may create a need for you to either remove or digitally mask these in editing or obtain approval of the individuals or companies visibly identified or the logos, trademarks, or other intellectual property which may be reproduced within your content.

2. Is your post for commercial or non-commercial purposes? If your original post is a new work that uses someone else’s existing work which is publicly available, Canada’s Copyright Act may shield you from a claim of copyright infringement if:

- your post is solely for non-commercial purposes;

- you mention the source of the existing work if it is reasonable in the circumstances to do so;

- you reasonably believe that the existing work is not infringing copyright; and

- your post does not have a substantial adverse effect, financial or otherwise on the existing work and is not a substitute for it.

Whether your post is for non-commercial purposes is also relevant when using content from the media libraries on social media platforms. The reason for this limitation is that the rights these platforms receive from the original creators or other owners of works may be restricted to personal or non-commercial use on the platform. Since the social media platforms cannot provide greater rights in the works in their media libraries than they themselves hold, some copyright content available to use on the platform is only for the personal use of platform users for non-commercial purposes.

3. Is how you are using the content covered by the fair dealing exemption in the Copyright Act? Using someone else’s copyright in Canada without their permission may be considered “fair dealing” under Canada’s Copyright Act and fair dealing may be a defence to a claim of infringement if it is for the purposes of research, private study, education, news reporting, parody or satire. The reasoning behind this exemption from copyright infringement – more often described as an “exception” – is that the use may be for societal benefit. When evaluating whether the “fairness” test of fair dealing has been met, the courts will look at:

- the purpose of the dealing (e.g., was the post for commercial or non-commercial reasons?);

- the character of the dealing (e.g., was the post widely distributed?);

- the amount of the dealing (e.g., how much or what proportion of the work copied is in the content of your post? – generally, the less amount of the work used, the better);

- any alternatives to the dealing (e.g., could you have used something other than reproduced material from the work copied in your post?);

- the nature of the work (e.g., is it factual or fictional work used in your post? – using material from a factual work is more likely to be considered fair); and

- the effect of the dealing on the work (e.g., is there any effect on the market value of the work copied?.

There may be other factors that help you to assess “fairness”. It is not always easy to be objective when you consider factors that can make one kind of proposed use “fair” (and not an infringement of copyright) while another proposed use is unfair (and will be an infringement). Since the copyright owner has the right to take any use of fair dealing to court if they dispute it, this exception should always be carefully and cautiously considered.

4. Does your post contain any disparaging content? Care should be taken to avoid referencing an individual or company in a negative light. If your content or any content created by others which you repeat refers to an individual or company in such a manner as to lower their reputation in the eyes of your followers or others, the individual or company may have a claim against you for defamation.

After you post

Once you post on social media, you are still the copyright owner of your post if it is an original work and anyone who had rights in part of the content of your post will continue to retain their rights. For example, if you use copyright content from a social media library in your post you will not gain any ownership of such content. Rather, the social media platform will continue to hold rights in that content within your post. Nor will you have the right to post your post elsewhere without getting any necessary permission.

Generally, the terms and conditions of social media platforms state that when you post original copyright material on its platform, you grant it a licence to use your post. Such a licence may allow the social media platform to host, use, distribute and copy your post and to create “derivative works” (i.e., works based on your work). It will also allow other users of the platform to use your post, including copying your post and creating derivative works based on your posted copyright material. This permits re-posts, likes of your post or other interactions with your post on that platform.

The licence granted to a social media platform for your post will last as long as you don’t delete the post from their platform. Once you do, it does not automatically delete your content that is posted collectively with material of other users such as in a shared album or that is re-posted by others. In such instances, only when those other users delete their post from their account will your post be completely deleted.

If you do not want your posts to potentially live indefinitely on a social media platform, you may wish to reconsider how you share your copyright content online. For example, you may want to create a website which provides notice of your copyright to viewers. Your website may have certain restricted areas with access through password protection which limits who can gain access to your content. This method may better protect your copyright but then has the potential to not have the exposure that you would have had on popular social media platforms. When deciding how you want to share your copyright content, you will need to weigh these considerations and determine what is your ultimate objective.

This article is informational and not intended as a substitute for legal advice.

The post Think before you post: Considerations for when posting content on social media platforms appeared first on ALAC.

Overview of Defamation Law in Ontario

Tyler Kowalchuk — Tue, 22 Jun 2021 13:12:49 +0000

Overview of Defamation Law in Ontario

What is defamation law?
Defamation law focuses on the protection of an individual’s reputation from harm. Within this law, two competing interests are weighed against each other: the protection of an individual’s reputation and the right to freedom of speech. The law of defamation is informed by both legislation and case law. This area of law is constantly evolving because of our changing understanding of what reputation and freedom of speech constitute. It is also developing because of the expanding number of ways in which we can disseminate information, such as by using social media, emails, or messaging applications.

What is libel/slander?
Libel and slander are the two different types of defamation. In Ontario, the ruling legislation guiding these two categories is the Libel and Slander Act. References to “words” are understood to include references to visual images, pictures, sounds, signs and other means of signifying meaning.

The Ontario act is not intended to be an inclusive definition of libel. Libel refers to defamatory words in writing or other lasting form that harm the reputation of the plaintiff. These words are often on permanent record and accessible to the public. Under the Ontario act, there are definitions and special rules for newspapers and broadcasting, including time limitations and provisions for apologies.

Slander refers to defamatory words that harm the reputation of the plaintiff. Unlike libel, these words tend to be impermanent spoken words.

What is required to prove the plaintiff has been defamed?
There are 3 elements that must be met to prove that the defendant has defamed the plaintiff:

the defamatory statement refers to the plaintiff;
the defamatory statement was made by the defendant and disseminated to the public; and
the defamatory statement harmed the plaintiff’s reputation in the eyes of a “reasonable person.”

If the claim successfully fulfills all 3 elements, the defendant can rebut the charge by successfully invoking a defence.

What are the defences?
The defendant has a number of potential defences available to prove that their statement is not defamatory. There are 5 established defences:

Justification
The defendant can rebut a charge of defamation by showing that the statement about the plaintiff is true.

Absolute Privilege
The defendant can invoke this defence if they published a fair and accurate report on a current court proceeding. However, the defendant must also have provided a reasonable explanation or a contradictory statement about the report in the newspaper/broadcast.

Any statements made by individuals in the course of Parliament’s functions (“parliamentary privilege”) is also protected from charges of defamation.

Qualified Privilege
The defendant can invoke this defence if their report falls under any of the following 4 categories outlined below. These reports must not have been published or broadcasted maliciously.

A fair and accurate report about the proceedings of a legislative body, administrative body, commission of inquiry, or organization—any of which represent or are constituted by any public authority in Canada—that are open to the public.
An accurate and fair report about a lawful meeting whose purpose was to discuss a matter of public interest – whether the meeting was open to the public or not.
A fair and accurate synopsis of any document made for the public by a legislative body, administrative body, commission of inquiry, or organization—any of which represent or are constituted by any public authority in Canada—OR made for the public by a lawful meeting whose purpose was to discuss a matter of public interest.
A fair and accurate report on the findings or decision of an association (that promotes art, science, religion, learning; public game, sport, pastime; trade, business, industry, or profession) about one of its members. The association must have adjudicative powers over its members.

The defence of absolute/qualified privilege does not apply to material that is considered indecent, seditious, or blasphemous. It also does not apply to reports/broadcasts that are not of public benefit or public interest.

Fair Comment
The defence of fair comment protects the expression of a defendant’s opinion as long as the defendant did not publish the statement maliciously, the comment is based on proven facts, and the comment involves a matter of public interest. The opinion must be evidently the defendant’s opinion—rather than a statement of fact reported by the defendant.

The defence of fair comment can be used even if all the facts published in the report have not been proven—as long as the opinion is a fair comment on the facts that have been proven.

This defence can also be used if the defendant published another individual’s opinion—even if both, either, or neither individual held the opinion—as long as a person can honestly hold that opinion.

Responsible Communication
To invoke the responsible communication defence, the defendant must show that the publication was a matter of public interest and the defendant tried to verify the allegations in the publication diligently. There are other factors that affect the success of this defence, including the seriousness of the allegation, the public importance of the matter, and the urgency of the matter.

Public interest can include any matter that stimulates the public’s interest or will affect the public.

The defence of responsible communication goes beyond traditional media organizations—it also covers all public interest publishers including Twitter and Facebook.

What are the time considerations for defamation actions?
For the plaintiff to begin a cause of action for defamation, they must adhere to certain time considerations. Each jurisdiction has their own time considerations for defamation actions.

For newspapers and broadcasts originating from Ontario, the plaintiff must give notice to the defendant about the statement within 6 weeks of learning about the existence of the defamatory statement. The plaintiff must also bring a lawsuit within 3 months of learning about the libel.

If the defamatory content was not in a newspaper/broadcast (e.g. social media, emails), then the plaintiff does not need to give notice to the defendant about the statement within a certain timeframe. For defamatory content reported in publications that are not considered newspapers/broadcasts, the plaintiff has 2 years to bring a lawsuit to the defendant after learning about the libel.

What if the defendant apologizes?
The defendant may plead for the reduction of damages by arguing that they published the libel without malice or negligence and showing that—before the lawsuit began or the earliest opportunity afterwards—they broadcasted/inserted in the newspaper a full, sincere apology for the libel.

In the case of a newspaper, if it is not published weekly, then the defendant has the opportunity to publish their apology in another newspaper chosen by the plaintiff.

What are some other considerations?
Hyperlinks
If an individual hyperlinks defamatory material in their report, they are not liable for defamation. Hyperlinks are normally considered content-neutral references that redirect the public to another source. If the other source is defamatory, it is the person who published the defamatory material itself that is liable for libel. However, if an individual hyperlinks the material in a way that “actually repeats the defamatory content,” then this individual is liable for defamation as well.

Third Party Intermediaries
Third Party Intermediaries are social media platforms, Internet service providers, domain name registrars or hosts, content delivery networks, search engines etc. These parties may be held liable for defamation depending on their awareness of the defamatory content and their ability to control the defamatory content. They may also be held liable by omission if the court rules that a third party intermediary was aware of the defamatory content but did not take steps to take down the content within a reasonable time frame.

In addition, if a defamer publishes a defamatory comment online, the third party intermediary platform (e.g. Facebook, Twitter, Instagram) does not need to give a notice of complaint of the defamatory material to that publisher, nor are they obligated to take down the defamatory content if the publisher does not respond. It may be difficult to succeed in court against internet service providers (e.g. Bell, Rogers, TekSavvy, Telus), since they may not constitute publishers for the purposes of liability, or alternatively, they may invoke the defence of innocent dissemination.

Multi-jurisdictional Claims
If the defendant is in a different jurisdiction from the plaintiff, the plaintiff will initially decide in which jurisdiction to sue. However, when the lawsuit begins, the court will decide whether the defamation claim should be heard. The appropriate jurisdiction will be determined based on whether or not there is a substantial connection between the defamation claim and the jurisdiction, as well as on other factors.

DISCLAIMER: This article is not a substitute for legal advice. Defamation is a complex and technical area of the law and a creator should seek legal advice in any particular situation if uncertain whether words they intend to publish may be defamatory.

The post Overview of Defamation Law in Ontario appeared first on ALAC.