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Social media platforms' terms of use: what you need to be aware of

The content on social media platforms plays a key role in contemporary news reporting. Using these platforms can be the quickest and easiest way of acquiring and verifying new content and information.

May 2015

There is a myth that content available on social media platforms is free to use, without restriction both on and off the platform simply because it is freely available.  One way of dispelling that myth is to look at the user terms of the platforms which attempt to set some of the rules for use of the content.  Best practice, as discussed elsewhere on this month's Download, suggests that express permission be obtained from the creator but, if that is not possible, a social media platforms' terms may give some comfort to fall back on (particularly as many are widely drafted – sometimes too widely to be enforceable).  This is clearly only possible if the terms are complied with and in the rush to deliver content to deadlines, it can be all too easy to overlook them.

We focus here on Facebook, YouTube, Twitter and Instagram and how their terms of use impact what can be done with user generated content (UGC) on their platforms.

What rights do social media platforms have to content?

Who owns the content?

Across all of these platforms, the creator of the UGC continues to be the owner of the relevant copyright.  Subject to the rights that the creators grant to the platform and other users of the platform, this means that seeking permission from the creator or falling within a copyright exception is crucial to the lawful (and best practice) use of the content.

cut, copy, pasteWhat rights do the platforms have to use the content?

Platforms will typically provide that by uploading content, the user / creator grants the platform a licence to "use" the content.  "Use" in this context can mean anything from copy or distribute, to publically performing the content.  In the case of Facebook, if the user's privacy settings are set to "Public", Facebook can make the content available to those who are not your Facebook friends.  This means that Facebook is permitted to associate public profile pictures with commercial, sponsored or related content served to 'enhance' Facebook.  Instagram adopts a very similar policy to this in which you allow Instagram to use your content "in conjunction" with its advertising features.

Similarly, by uploading content to Twitter, the users also grant a licence to the platform to "use" their content.  This can mean making content submitted to or through its services available to other companies, organisations or individuals who partner with Twitter.  This enables Twitter, for example, to deliver users' content through its API programme.  It also allows Twitter's partners to syndicate, broadcast, distribute or publish content on other media and services i.e. in ways that are off the Twitter platform.

What rights do third parties have to use UGC on these platforms?

Although people share YouTube videos all the time and use them in professional contexts, YouTube actually adopts a fairly strict policy towards use of content on the platform.  Its terms state that users agree "not to distribute any part or parts of the Website…in any medium without YouTube's prior written authorisation", unless YouTube explicitly facilitates this on the website, for example through its YouTube Player.  This term demonstrates the importance of only using YouTube content within the YouTube player, rather than copying it and using it 'off' YouTube.  The terms also state that users cannot reproduce content without YouTube's consent, or the consent of whomever has the rights to license the content.  Twitter's terms say something similar as they require users to get the creator's consent before republishing content accessed by means other than via the Twitter API or other Twitter tools.

Facebook's terms secure from its users the broadest of all licences permitting third parties to use uploaded content without setting any conditions on that use, sayingenter key on PC keyboard: "When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you" and "Public information is available to anyone on or off our Services and can be seen or accessed through online search engines, APIs, and offline media, such as on TV."  The terms provide a practical example of what this licence allows: "if you use our services to provide a real-time public comment to a television show, that may appear on the show or elsewhere on Facebook."

A recent decision from the UK press regulator, IPSO, did not, however, take these terms into account when deciding whether or not use by a newspaper of a publicly available photograph from Facebook intruded into the complainant's private life (see the decision). IPSO instead looked at the nature of the photograph and the information in it when deciding that the privacy provisions of its code were not violated.  The English High Court has also not placed much, if any, reliance on Facebook's terms when deciding whether or not a photograph, which became public because of a change to the terms, engaged an individual's reasonable expectation of privacy (see its judgment). These approaches suggest that it will be the content of the photographs and the extent of prior publication to the public, rather than the platform's terms, that will be more important in assessing whether privacy rights prevent them from being published in other places.

Many platforms require any third party uses of content to be done by means of "embedding". This means that the content will remain on the platform's page but will be seen through the user's page. By contrast, the platforms tend to prohibit scraping, which involves taking content off a site and incorporating it into another site with no credit or links to, or signs of, the original site it came from.  To encourage embedding over scraping, Twitter and YouTube even provide guidelines on how to embed a video into another web page.

Since content cannot be embedded into a live broadcast, some platforms have set out specific requirements for how content may be used.  Twitter, for example, has a comprehensive policy on how to use its content in broadcasting.  It states that if these stipulations are followed, there is no need to contact Twitter to get permission to use the content (of course, this does not mean that permission is not needed from the creator).  For example, the Twitter bird icon must be displayed whenever material is reproduced and there are requirements regarding the size of the text used and the size of the bird.  These requirements apply to all "exhibition, distribution, transmission, reproduction, public performance or public display of Tweets" meaning using content in almost all media formats.

Navigating the terms and conditions of social media platforms can be an arduous task but it is worth doing, firstly to see if it is possible to rely on any licences already granted by or to users of the platform and secondly to avoid potential claims from the platforms.

If you have any questions on this article please contact us.

Terms and conditions on typewriter
Adam Rendle

Pollyanna West

 


Adam and Pollyanna look at the way leading social media platforms handle UGC.

"Navigating the terms and conditions of social media platforms can be an arduous task but it is worth doing, firstly to see if it is possible to rely on any licences already granted by or to users of the platform and secondly to avoid potential claims from the platforms."