The perils of social media posting

Is your business active on social media? Well, beware of two major risks that often go under the radar. The first is being sued for infringing the copyright of the original creator of a particular ‘work’ or material. The second relates to facing costly legal battles if your own original materials are lifted and used by third parties or if negative, reputation-damaging content emerges online.

There is a general lack of awareness as to how copyright works. In 2024, the Intellectual Property Office (IPO) found that many SME businesses do not have an understanding of Intellectual Property beyond the “topline terminology”, meaning the term itself.

Original photos, videos, written and musical works and much more are protected by the Copyright, Designs and Patents Act 1988. This law prevents copying or republishing content without permission. This differs from trademark law, which protects distinctive names, logos, slogans and elements of brand identity. However, infringing another company’s rights in this regard can be equally costly.

Getting caught out by social media posting

There are definite legal pitfalls to consider with social media. The very fact that the social media channels encourage ‘sharing’ of pieces of content could be at odds with the principles of copyright law, which protect the author or creator’s original rights. Many social media users believe crediting the work’s originator is sufficient, failing to realise that this does not eliminate the risk of being sued by an originator who did not permit us to use their material.

A surge in IP infringement cases suggests many businesses are getting it wrong. Just because someone posts a picture on the internet or a social media channel does not mean the image has entered the public domain and is available for use.

Some of the popular image libraries are strongly protective of their copyright, as are many photographers. Any business could easily find itself faced with a very worrying lawyer’s letter. Similar issues occur when using GIFs or memes. Unless permission has been granted and the material used precisely as intended, the end-user can be in hot water.

Failing to understand that personal use and commercial use are two different matters is another problem. Royalty-free music libraries often place a ban on ‘commercial use’ of tracks, whilst allowing individuals to utilise their materials.

‘Fair use’ is a further grey area. Under UK copyright law, fair dealing permits use of copyrighted material without permission, but only for specific purposes such as criticism, review, news, reporting, research and private study. Commercial use is not automatically excluded, but the fairness of the use is judged on factors like the amount used, the purpose and the potential impact on the market for the original work, which could lead to legal challenges.

Good practice on social media

If using social media, always check that you have ownership of materials being posted or are properly licensed to use the content. Keep evidence of the license or permission granted and ensure permission is in writing. UK courts can award significant financial compensation depending on the nature and impact of the infringement.

Finding your business on the other end of copyright infringement can be equally challenging and costly. Nevertheless, it can be absolutely crucial to assert rights over a piece of work, an image, or other material. Similarly, if you are defamed, receive fake reviews, see a copycat account established, or are misrepresented online, it may be imperative to act decisively and quickly. Having access to the right specialists is almost always necessary, and that comes at a cost. IP litigation costs are typically higher than the final settlement costs.

Protecting your business against IP risks

There are steps to take to try to safeguard against the continual risks. Make employees aware that actions on social media can create liability issues, and train them in good practices for posting and sharing content. Beyond that, consider stand-alone Intellectual Property insurance or a cyber or technology Errors & Omissions (E&O) policy with media liability coverage.

An IP policy will protect you from the penalties applying to infringements of copyright, trademarks and patents, as well as any breaches of Non-disclosure Agreements. It can provide access to experienced claims handlers and a network of panel lawyers worldwide, highly experienced in resolving disputes swiftly.

Defence costs are covered, along with damages payments for infringements. The policy also allows for pursuing claims against third parties. There is, in addition, some directors and officers cover, to help protect a director held personally liable for an IP infringement.

To discover the options available to you, if using social media as a marketing tool, talk to one of our brokers today and allow us to get you protected.