It’s a new world when it comes to business and marketing. That world includes social media campaigns, websites, and live social media feeds. One of the key components of any small or emerging business should be a social media/digital media policy. 

Implementing a well-crafted social media/digital media policy and making sure all employees understand it will protect a company’s reputation online as well as reduce both security and legal issues. It also provides employees with an outline of what is shareable about your business in both their professional and personal accounts. 

Having this clear line will prevent an employee from inadvertently sharing information that isn’t ready to be publicly released or from sharing information that may be copyrighted somewhere else. 

Digital media goes beyond posting on social media or a digital marketing campaign. It also refers to recording telephone calls, using a picture or an image of someone, and using information from another source. All of these things, if done improperly, could pose legal hazards for a small business. 

Recording phone calls

Many people want to record telephone conversations to protect themselves. It could be you want to nail down specifics of a project as your client is stating them, or maybe you want to record an actual complaint to have it on record. However, recording telephone conversations or in-person meetings can be legally tricky because of both federal and state wiretapping laws that could prohibit it. 

That gets even more complicated when those in conversation are talking across state lines on a Zoom call or phone line. Each state has its laws which may be different and it would be a hard call which law would apply, or if federal law applies. 

Generally, there are two avenues that state laws fall into:

  • That both parties must be aware of the recording. 
  • That at least one party must be aware of the recording. 

Regarding federal law, the law permits recording face-to-face conversations, telephone calls, and other types of communication if at least one of those involved is aware of the recording. This “one-party consent law,” amended by the Electronic Communications Privacy Act in 1986, has been in place in many states for decades. The law also states that those who are not a part of the recorded conversation may still record it if one of those in the conversation consents and knows about the recording.

The U.S. Supreme Court heard a case in February of 2021 that addressed the issue of an internet user’s communication with a website. The question was whether an entity that redirects communications could be considered a “party to the communication” under the Wiretap Act. 

The case was Facebook Inc vs. Perrin Aikens Davis et al. The case involved secret tracking practices of Facebook did in 2010. The social media company had a hidden source code on non-Facebook sites to obtain subscribers’ information and communications with those sites, even though users had logged out of their Facebook accounts. There was no knowledge or consent given by the users. 

The practice continued until a news story revealed the practice in 2011. Congress amended the Electronic Communications Privacy Act of 1986 to include electronic communications but amended it again to forbid anyone from “intentionally intercepting any electronic communication.” 

Much like the law relating to phone and oral communications, the law allows interception if one of those involved in the communication gives consent. 

For businesses with websites, this is important because many ask that people sign up with their emails or other information. The law states that only the user and the company at the other end of the communication are entitled to the information unless one agrees for it to be taken by a third party. It could be the company or the user. 

Recording laws in different states

In addition to the federal law, each state develops its wiretapping law that stipulates when telephone conversations or face-to-face communications can be recorded. While states aren’t allowed to set laws below the federal standards of “one-party consent,” thereby contradicting federal law, they are allowed to set tougher standards to protect privacy.

Thirty-five states have one-party consent laws while 15 states have all-party consent laws. For the most part, each state’s laws are similar to federal law and others with either one-party consent laws or all-party consent laws. 

New York

Recording a conversation without the consent of at least one party of the communication is considered a felony in New York. New York created its eavesdropping law to state at least one of those involved must give consent to the recording.

New York includes the use of hidden cameras in its wiretapping law, prohibiting images from hidden cameras altogether in what is determined to be “private places,” such as dressing rooms, but allowing images to be taken from places determined as “public” where people shouldn’t expect privacy.

A more recent state appellate court decision ruled that those who talk loudly enough where another person may overhear the conversation should not expect privacy. This primarily affects reporters who may overhear conversations from potential sources in public.

The penalty in New York for illegally recording conversations in a felony conviction is up to four years in prison and a $5,000 fine. Misdemeanor convictions are subject to a maximum of 364 days in prison and a $1,000 fine according to N.Y. Penal Law 70.15, 80.05. 

New York doesn’t authorize any civil penalties for anyone suing under the eavesdropping law or hidden camera law.

There are some unique aspects to the New York law. One of those brought up by a state court is that the eavesdropping law only applies to communications in transit, not messages stored on a computer. This means emails could be shared after the fact, according to the ruling in People vs. Thompson.

California

California law is tougher regarding its wiretapping laws. It makes it a crime to record a confidential conversation without all parties consenting or without letting each party know of the recording by using an audible beep to start recording and continue recording within certain points of the conversation. 

The key point in the California law is to identify what the state means by “confidential conversation.” According to the California Supreme Court, a confidential conversation is one where both parties “have a reasonable expectation that no one is listening or eavesdropping.”

While the California law can include both a fine and imprisonment, the law also allows for civil damages for victims of illegal recordings.  Eavesdropping can be considered either a felony or a misdemeanor, depending on the facts of a specific case. A misdemeanor offense carries either or both a $2,500 fine and up to a year in jail. Felony offenses have a penalty of up to three years in jail.

Florida

Florida’s eavesdropping laws state you must have the consent of all parties to record conversations, whether on the phone, electronically, or in person. Illegal recordings are considered a misdemeanor or third-degree felony, depending on the offender’s conviction history and intent. Florida’s law also allows for civil damages. 

Florida’s law is specific in that it includes anyone who intentionally intercepts or tries to intercept a wire, oral or electronic communication. That would include computer communications like emails, text messages, and other forms of communication.

It also makes it a crime to disclose information from illegal recordings, even if you didn’t do the recording. It becomes a crime when you have reason to believe the recording was made illegally.

Conviction in Florida could net up to five years in prison and $5,000 in fines. The exception is if it is the first offense and didn’t have an illegal purpose or commercial gain attached to it according to Fla. Stat 934.03(4)(a).

Fair use + using the likeness of another

Fair use of material and using the likeness of another person fall under the federal Copyright Act. Generally, the act denotes fair use for any copyrighted work, including copes, recordings, or other transmissions, and applies for use of comment, criticism, news reporting, teaching, research, or other academic endeavors. 

Where it becomes illegal is for the purpose of using copyrighted work. Using copyrighted work to gain profit, marketing, or promoting is generally considered illegal, with some factors depending on the exact case. Some for-profit use is considered fair use.

There are several factors used to determine whether using a copyrighted work falls under “fair use.”

  1. The intent as described previously whether it is for opinion, news, teaching, or academic purposes. 
  2. A court will determine whether the work has been significantly changed to create a new message or meaning, calling it “transformative.” This would apply to creative works where the base storyline may be the same, but the characters and plotlines are different from the original.

It could also apply to things like advertising or marketing campaign elements that use a previous slogan or picture. 

  1. The nature of the work will be considered. This means the court will look at whether it is factual work, such as compiled data, or creative and also whether it is published or unpublished. 

This would affect things like news articles and biographies. Those are still copyright protections, but the facts listed in these items are not so it could still, in certain circumstances be considered fair use. 

  1. The court will consider how much of the work was used. There isn’t a guide on this but some perimeters have been determined in cases involving both books and music. 
  2. The court will look at how your use affects the sales and market of the copyrighted work. This is potentially one of the biggest factors and is largely aimed at things like books, television shows, and movies. It determines whether you stole a work, produced it, made money on it and that prevented the original creator from doing the same. 

More on fair use and the specific details of it can be found in Section 107 of the Copyright Act. 

Responding to a DMCA takedown notice targeting your content

This is a portion of digital media law that is constantly changing as social media platforms change policies regarding false or misleading information, publishing standards, and offensive material. 

DCMA refers to the Digital Millennium Copyright Act. The role is to protect copyrighted works online, but it has been used by social media in other ways to control online news and communications. 

Specifically, a DMCA takedown is when content is removed from a website. This can be at the request of either the copyright owner of the content or the known owner of the content. It is a known, established standard followed by internet service providers and website owners. 

Anyone who produces material has a right to process a DMCA takedown notice against an online service provider or website owner as long as their content is found online without permission. 

A DMCA Takedown Notice must be sent to the website owner when this happens on behalf of the content owner, distributor, or publishers. The internet service provider (ISP) or hosting website company is mandated by law to take down the information from a website when the website owner had not voluntarily complied with the notice.

An ISP is typically thought of as the big tech companies like Google, YouTube, Apple, Facebook, and Twitter, but it can be any company that hosts your website, any commercial wifi services, or any file-transferring services.

The ISP or hosting company can take the infringing website “offline” when the website owner fails to comply with a takedown notice. 

However, by law, the takedown notice simply had to go to the ISP or website hosting company. The hosting company may take down the material and then notify the website owner. 

This provides the ISP a “safe harbor” which means it is protected from copyright infringement.

Disputing the notice

Section 5129(f) was enacted by Congress to fight unjustified use of the takedown law. This provision allows internet publishers to bring claims against copyright owners who knowingly misrepresent their cases of infringement.

Cases, such as a 2008 case, insist the copyright owner must consider that fair use may be in play. This could affect things like parody songs, or videos meant for online jokes or other entertainment using images, songs, or other forms of copyrighted work. 

The website owner has the right to dispute any takedown for any reason, whether it is copyright or some other reason. It is determined that most video removals don’t involve copyright but are flagged for some other community standard violation. Most platforms have terms of service agreement that states they reserve the right to remove content and user submissions without prior notice. 

A DMCA takedown notice must meet requirements in that it must clearly and specifically identify the infringing material, stating they have a “good faith belief” that it violates the copyright. 

Many times, notices are improperly written. Takedowns are often automated focusing only on keywords and not on the material as a whole.

If your material is taken down, immediately ask the hosting company for notice if you haven’t received one. 

You will then have two options. You can either send a dispute or a counter-notice. 

Issuing a dispute

Disputes can be tricky because they are often auto-generated without the original creator notified. If you send a dispute, the original creator will be notified. It will also mean your material will then be personally reviewed and that can present a problem depending on who is reviewing it. 

Remember, these days some in the review process have certain political/social/personal perspectives that could affect how they interpret your content. 

  • A simple way to initiate a dispute is to hit a dispute button found on your website host or within the takedown notice. It is sometimes in the “copyright notices” part of your website. 
  • You may also file a written dispute. Be sure to include your name, website address, any reference numbers, and your address including the federal court district you reside in.
  • After you’ve done this, the platform can agree with their original claim and reject your dispute or put the content back up. 

Be aware that some platforms have a limit to how many times you can dispute a specific case. For instance, those on YouTube can appeal a rejection dispute up to three times. 

In most cases, there are specific times the platform has to review a case and respond. Most allow a 30-day period to review and additional time to respond to an appeal in a rejected appeal case. 

Some providers, like YouTube, have features that allow website providers to schedule takedowns themselves. This helps them avoid copyright takedowns that lead to strikes and ultimately the banning of a website. 

Many podcasters are using this method of posting a video for a limited time and then taking it down to avoid strikes. 

Issuing a Counter-Notice

These are difficult to win because it disputes a contract claim and usually fails because of the platform’s user agreement. Those who win a counter-claim typically don’t have their content reinstated. 

The first thing to consider when deciding what to do is whether your content does violate copyright restrictions using the court guidelines. If it does not, then you perhaps should consider disputing the claim.

One thing to consider is whether the work is registered with the Copyright Office before the infringement claim was made.

A fear most have is whether they will be sued if they dispute a claim. While that is always a possibility, it isn’t a probability especially if the copyright relates to work from a large enterprise. Large companies tend to not want to bother with suing a small business for violating a copyright infringement.

Dealing with digital media laws can be complicated for a small business. Knowing the basics of them will keep you out of legal trouble and help you keep your website up and running. Learning how to deal with a DMCA takedown notice isn’t the easiest subject to deal with, but is something every business owner must contend with these days.