Various policies of social media platforms to control cyber crimes
For all companies with IP rights, social media sites provide valuable opportunities to promote their brands, images and rights to a global audience. Today, it is essential for rights holders to have an official page on all recognised social media platforms, including Facebook, Twitter, LinkedIn and Instagram. Many larger brands also operate an official YouTube channel with authorised content derived from the company.
Even with official pages in place and an internal social media policy to ensure the positive management of complaints or negative press, social media inevitably also poses IP challenges. As it is free and fast to set up a social media account, potential infringers or squatters can quickly cause damage to rights holders.
In addition to issues of consumer criticism of a brand, social media sites can give rise to other potential problems, such as:
- fake account or user names and name squatting;
- misappropriation of a company’s trademark or copyright; and
- the sale of infringing or counterfeit goods.
As a result of these increasingly common practices, it is vital for rights holders to have sufficient, robust rights in place to address issues promptly and to manage them effectively. Luckily, most popular social media sites have policies in place to deal with parasitic practices in order to protect IP rights. These policies are provided under the terms of the social media sites, to which users must adhere. If a social media site user breaches the terms, the site can take steps to remove the infringing content or, for serious or repeat offenders, can disable or terminate the user’s account.
Although social media sites do use internal measures to detect some types of infringement (eg, copyright or counterfeit products), these general safeguards inevitably fall short of protecting rights holders from the specific issues faced by their business. Therefore, it is recommended that the rights holder or its representative should monitor sites carefully and take appropriate steps to have content taken down.
The policies for aggrieved rights holders are often referred to as ‘takedown’ solutions. All of the social media sites discussed here recommend that rights holders first contact the relevant account holder to request removal of the content before submitting a takedown request. Given the numerous examples of negative press arising out of heavy-handed cease and desist letters in these situations, it is important that any contact is dealt with sensitively and in accordance with the rights holder’s existing social media policy, if any.
Facebook and Instagram have virtually identical policies for reporting violations or infringements of trademarks, copyright or “other legal rights”. In all cases, this involves completing an online takedown form which must include the details of the complainant, the IP right relied on, the ownership and links to the offending use and why it creates confusion or infringes. The form can be completed by the rights holder or its authorised agent. While a rights holder can choose to contact Facebook or Instagram’s designated agent with the claim details, the sites encourage use of the online form as the most efficient method of complaint. It is not necessary for a rights holder to have a Facebook or Instagram account in order to file a takedown form.
For trademark complaints regarding fake account names or straight infringement, the online form also requires details of the mark(s) involved, the country of registration and the goods or services. It is also recommended to provide a copy of the registration certificate or link to the official trademark database of the relevant country. The sites can immediately remove content subject, but will usually notify the account holder of the complainant’s details so that it can deal directly with it. If the user is not using the trademark in regard to the goods or services for which it is registered, the social media site is likely to conclude that no policy breach has occurred. If the complaint is based on a US trademark right, a user may contact the site if it believes that the content was removed incorrectly.
These sites also have specific forms for complaining about counterfeit goods being sold via a user account which infringe a registered mark. Details of the IP right relied on and the offending content must be reported with a declaration under penalty of perjury for falsely claiming that something is counterfeit. Therefore, care must be taken to ensure that the items concerned are in fact counterfeit. Of course, should the policy submission fail, the rights holder can pursue litigation if the infringing content remains. However, this should be a last resort.
The other legal rights that may be relied on could include registered or unregistered design rights where an infringing product is being offered. Alternatively, unregistered trademark rights could be utilised if a user is misrepresenting itself as being connected to or approved by a brand, thus causing or likely to cause damage to the brand reputation.
The owner of the disputed account can file a counter-notice if it believes the copyright claim to have been made in error or that the material has been misidentified. Following receipt of a counter-notice, if the rights holder does not notify Facebook or Instagram within 10 to 14 business days that it has filed a court action seeking to restrain the infringing activity, the social media site will restore the contested content.
Similarly, Twitter has policies to address the abuse of trademark rights, copyright and the sale of counterfeit goods through submission of the relevant online takedown forms. Full details of the complainant, the rights relied on and links to the offending tweet, which can include a promoted ad tweet, must be provided.
Again, the rights holder need not have a Twitter account to file a takedown form, and use of the form is recommended above contact with Twitter’s agent. Twitter states that any trademark action may be limited to a particular jurisdiction if the rights relied on are, for example, valid only in one country, or may be limited or rejected if different goods or services are at issue from those covered in the trademark registration. In some cases, Twitter may give the user an opportunity to comply with its policies before suspending an account.
Twitter includes a specific policy and form for misuse of a registered trademark in ads that mislead or confuse users. Pending marks are not sufficient under this heading, but they can be logged under the brand impersonation takedown form. This again stresses the importance of ensuring that a rights holder has sufficient registered protection in place.
Username squatting can be an issue on Twitter. If a username contains a registered trademark, the rights holder can attempt to recover it through the trademark takedown policy, although accounts that are inactive for more than six months can be suspended. While Twitter allows users to have parody and fan pages which may relate to a brand, for example, they must comply with rules to indicate that the page is a fan or parody site. If they do not, a takedown, following the recommended initial approach to the user, can be pursued.
In all cases, offenders may have their account suspended and may be removed from the Twitter ad platform, particularly if they are found to have violated the counterfeit goods policy.
On Twitter, if relying on the copyright takedown policy, Section 512(3) of the Digital Millennium Copyright Act applies. Interestingly, offending content will be shown in the user’s feed as having been withheld or removed as a result of a report by a copyright owner. Therefore, this can be a useful deterrent to third parties thinking of using a company’s IP right, demonstrating that the holder monitors and enforces its rights.
Copyright complaints on Twitter are publicly available through a database on Lumen, albeit with personal information removed. While this can show third parties how well and how regularly a rights holder polices its rights, care must be taken with regard to the content of complaints.
LinkedIn is an important social media site through which businesses can promote their goods and services to other businesses, potential suppliers, end consumers and even prospective employees as a recruitment tool. Rights holders should therefore ensure that they monitor and enforce their rights accordingly in the event of any misuse on LinkedIn. In this regard, there are still policies for removal of material that breaches a party’s trademark or copyright, as well as complaining about false profile claims.
The requirements concerning copyright and trademark takedowns on LinkedIn are effectively the same as those under Facebook and Instagram with regard to the details to be submitted. However, one point of difference is that specific counter-notices can be filed by the aggrieved account holder in both trademark and copyright takedowns, offering them a chance to defend their position.
Again, on receiving a counter-notice, a rights holder has 10 business days to commence formal action; otherwise, the material can be re-posted. Therefore, rights holders may sometimes need to escalate action beyond the takedown procedures, resorting to litigation only if truly necessary and notifying the social media sites that this has been done. The offending page or account is then usually suspended pending the outcome of further action.
By- Ananya Yadav