Brands are liable for content on social networks


Cuatrecasas, Gonçalves Pereira’s Intellectual and Industrial Property, Media and Data Protection Practice answers questions on the legal limits of brand liability in Web 2.0 environments, and gives guidelines on how to protect corporate and individual profiles from bad practices



Brands: sole liability


In business environments, corporate brands are liable for the content published on their social network accounts. Under the Act on Information Society and eCommerce Services (“LSSI”),information-society service providers are subject to the regime on administrative, civil and criminal liability established by the law. This implies that brands are considered service providers for these purposes and are liable for all the content they publish on social platforms, as well as that published by third parties.


Thus, brands must take extreme care to avoid illicit actions, particularly in four areas. First, brands must pay particular attention to advertising, whether for promotions or draws; this also applies to product placement. Second, content using third parties’ intellectual property rights must not be published without those parties’ consent. Third, under the LSSI, images of third parties cannot be made public without their consent, or comments cannot be made relating to their privacy or that infringe on their honor, as this violates the personal rights of individuals. Fourth, personal data protection regulations must be complied with when collecting and processing the personal data of users on social networks. These four aspects also apply to content published by third parties participating in a corporate social platform or working under a brand’s name.


Companies using social networks will have to pay more attention to the legality of the actions carried out in Web 2.0 environments. Ana Soto, partner of Cuatrecasas, Gonçalves Pereira’s Intellectual and Industrial Property, Media and Data Protection Practice, argues that “social networks act as huge billboards on which brands and users can publish content. As brands are liable for all the information that appears in these digital displays, marketing actions must be increasingly redressed to ensure their legality.”



What happens with published content?


Individuals publishing content on social networks must be aware that they are transferring the reproduction rights and public communication rights to that content, under the conditions of use they accept when signing up for a digital platform. That said, under the Intellectual Property Act, it is the owners that have the exclusive right to exercise the rights to exploit their works. This is where the conflict arises, as social platforms assume that they own the content published by the user or the brand, while the other users in the social network are given access to use that content regardless of who owns it.


We highlight again that it is the user and, by extension, the brand, that is liable for the content published under its name, given that social networks assume that the information users and brands publish is legal. In this case, infringements will be penalized, as established in the applicable regime on administrative, civil and criminal liability: the penalties established for online cases are the same as those for offline cases.





Given the growing numbers of users in Web 2.0 environments, and the widespread use of these environments by individuals and companies, it is necessary to act with the utmost care to adapt to the legality of these environments. The intellectual and industrial property experts at Cuatrecasas, Gonçalves Pereira recommend exercising caution regarding the comments and content that third parties publish on brands’ profiles. Comments from users not belonging to the brands’ accounts must be reviewed, and any illegal content must be edited or deleted. In this case, they recommend that brands establish conditions of use that clearly regulate the limits of that information, and the possibility to edit it if necessary, and adapt contracts for use of own content or the content of others in the social networks.



Brand value and reputation


The Web 2.0 environment has become a kind of ecosystem where users, companies and administrations coexist. Communicating on social networks has become necessary to reach a wider public, particularly the interest groups of each of the profiles present in the digital world. However, it is not enough to communicate: relationships of trust must be established, to build loyalty with the interest groups being addressed; this trust is possible by publishing content of value. As the online presence of a corporate group or opinion leader can receive high public exposure, transparency is essential, particularly when concealing information could damage a company’s reputation.



Photo credit: Robert S. Donovan / / CC BY