The Business of Creativity

Houchin Consulting PLLC

Play Nice: Legal Issues & Social Media

Posted on | December 8, 2008 | 7 Comments

You already know, or are learning, that social media tools like Facebook, Twitter and LinkedIn are wonderful ways to keep in touch with your friends and business associates. However, unthinking posts in such forums could land you on the wrong side of a lawsuit.

My goal here is plant a few seeds in the back of your mind about social media content you create. I won’t be able to cover every possible way you can get yourself in trouble, but I’ll hit the highlights.

Of course, each situation is unique to you, your state, the people on the other side of any discussion, and a bunch of other factors, so don’t simply take my word for it. If you find yourself in trouble, consult your own attorney — everybody should own one.

The most probable ways you can find yourself in hot water are:

Defamation: damaging someone’s reputation.

Privacy: disclosing someone else’s secrets.

Interference with Business Relations.

Negligence: being a dork and harming someone.

Contract: ending up in an enforceable agreement.

Trademark: confusing consumers about a brand.

Copyright: sharing something that’s not yours.


In today’s world, we lump harms to someone’s reputation arising from a written statement (libel) or from a spoken statement (slander) under the common term “defamation.” Here’s what we look for:

1.              Defamatory language on the part of the person being accused, which could be you or someone else online. Note that the language does not have to be direct, it can also be innuendo, satire, etc.

2.              That language must be “of or concerning” the person claiming to be harmed by the language.

3.              The language must be “published,” which is just assumed in the context of our discussion of a troubling tweet or other social media content.

4.              The language has to damage the reputation of the person making the complaint. Note that even a statement of opinion might be trouble, for instance: “I don’t think Sylvia can be trusted with the key to the store” would be actionable because you’re implying a personal knowledge and accusation of dishonesty that would harm Sylvia’s reputation.

If the language refers to a “public figure” or involves a “matter of public concern,” then we have to also prove:

1.              Falsity of the language; and

2.              Fault on the part of the accused person.

Remember that you can get in trouble with statements that target an individual, company, association, or anyone that has a reputation to be damaged. And, it could cost you big-time, especially if you are referring to a few special cases such as a statement that goes to a business or professional reputation, says someone has a “loathsome disease,” has committed a “crime involving moral turpitude,” or imputes “unchaste behavior to a woman.”

Even a truthful statement can get you into trouble if sharing that bit of truth damages someone’s reputation.


This one is touchy. If you disclose something that a “reasonable person” would not want disclosed, then you could wind up in trouble, even if the disclosures are truthful. An example would be disclosing the real name and location of someone in witness protection. Another example would be attributing to someone views he doesn’t hold, or saying someone did something they did not do. Exposing someone’s extramarital activities inadvertently by posting a photo showing person X with date Y when the date is not X’s spouse could land you in hot water.

Note that this right is personal. Companies cannot claim a right of privacy, although they have other avenues to pursue similar situations, such as “Intentional Misrepresentation,” otherwise known as “fraud” or “deceit.”

Interference with a Business Relationship

This one is pretty well explained by the title. To get in trouble here you have to know about a valid contractual relationship, or a valid expectation that someone will be entering a valid relationship, then you have to intentionally mess it up. Enough said.


Think about a car accident. Now think about a car accident online and you’ll be heading down the road to understanding this potential problem.

When you drive a car, you have a duty to conform to a specific standard of conduct, which was breached in the accident and caused actual damage to someone. The same can happen online. Do you have some duty of care?

A good example would be an attorney or doctor who has a duty to keep client information confidential. You also signed, but probably didn’t read, a “terms of use” agreement for each social media site when you signed up. Those agreements generally define your duty relative to the content you post on the site.

Did you breach that duty? And, did your breach cause damage? All four elements have to be in place to get you in trouble for negligence.


All it takes to fall into a contract is an offer, an acceptance, and a promise to pay, known as “consideration.” That’s it.

You might think you’re joking around during an online exchange, but just a single post and response could bind you into some contractual action. Watch out that you don’t agree to something you really don’t want just because you don’t think social media exchanges count as contractual language.

Heck, you could also get in trouble here by making an offer for business services that are seen as an open offer for everyone. The possibilities are endless.


Trademark law is all about protecting someone’s investment in their brand — personal or business. It’s about consumer confusion.

The test for trademark infringement is if an appreciable number of consumers would be confused about the source of some goods or services, thinking those goods or services come from, are affiliated with, or endorsed or sponsored by the person making the complaint. The affiliation and endorsement factors will get you in trouble.

So, don’t use someone else’s brand name for your online name, and avoid inferring that you are associated with people or brands with which you really have no affiliation or sponsorship.


I admit it will be hard to get yourself into a copyright infringement situation from a single 140-character tweet, but you might be tempted to post a few tweets in a row to share a short poem or song lyrics. Don’t do that.

It’s easier to get in trouble on Facebook, LinkedIn, or MySpace because there you might be tempted to post a photo or piece of music that will land you squarely in a copyright infringement situation. Just because it’s online and easily copied, doesn’t mean you have the right to make and post other people’s creative work. You don’t.

Trust your instincts — if you had worked hard to create something, would you want it posted by someone else? Probably not.

I’m sure there is some form of legal trouble that you could get yourself into that goes beyond this list. But I’m going to assume that you’re not a criminal mastermind and that you’re not going to use your online accounts to harass people or solicit young boys or girls to meet you at the mall for a date.

Use your account only for good, to make friends and help people. It’s a jungle out there, so be careful and play nice.


7 Responses to “Play Nice: Legal Issues & Social Media”

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