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#1 Defamation “But I didn’t mean it like that!”

You can be liable for defamation where content contains factual statements about individuals or companies which, in simple terms, will cause serious harm to their reputation.

So when prepping for your next recording, you need to be thinking:

Am I making any allegations that are statements of fact about any identifiable individual or a company?

Is the publication of these statements of fact likely to cause ‘serious harm’ to the reputation of the individual?

Can I prove these statements of fact? Do I have sufficient evidence to prove ‘on a balance of probabilities’ that the statements of fact are true?

I’m about to publish a video…

What do I need to think about? Whether you’re publishing on YouTube, Facebook, SnapChat, Twitter, Vimeo, or other digital means,

defamation is something you need to firstly understand, and then avoid like the plague. Let’s get started…

Authorised and regulated by the Financial Conduct Authority. La Playa Limited registered in England No. 3605982 Registered office: Merlin Place, Milton Rd, Cambridge, CB4 0DP

La Playa Media & Digital: Insurance with Intelligence® London: +44 (0) 20 3865 0149 Cambridge: +44 (0) 1223 200 650 mediatechinsurance.com

#2 PRIVACY “None of your beeswax!” We’re all thrilled to hear Tony’s rash has cleared up, but did he say you could blab about it online? Some things to consider before pressing that record button:

Every individual has a legally enshrined right to respect for their private and family life, home and their

correspondence. – ARTICLE 8 of the Human Rights Act.

THINK: am I revealing details of someone’s private and family life, home or correspondence without permission?

What is private?

Anything that takes place inside the home – sex, affairs, sexuality, mental and physical health;

Anything that takes place on private property – can include parties, pubs, restaurants and nightclubs (yes really); and

Any situation where a person has ‘a reasonable expectation of privacy’.

#3 COPYRIGHT “But I found it on Google!” Are you using something that somebody else owns, without permission? Copyright can be a real hidden danger for Vloggers and Bloggers. It’s important to know what you can use and what you can’t.

Copyright protects literary works, artistic works (including photos), videos, music and others. It arises automatically and upon its creation. Copyright protected works are everywhere.

Copyright is probably owned by the creator of the content.

As a rule of thumb, there is no ‘public domain’ for any works created after the 1940s. It is owned by somebody.

THINK: Am I infringing someone’s copyright?

Infringement can mean copying all of it or a substantial part.

Photos are a classic example. If you’re using photos without a licence, you’ll likely infringe.

E.g. photos from Twitter, Facebook etc will all have owners who will have a right to sue

An acknowledgement won’t protect you

There is no “public domain”

If using photos without permission, make provision to pay out

However it’s not all doom and gloom! There are some things you can do without worrying, namely embedding and linking:

It’s OK to provide links to copyright protected works (i.e. other pages on the internet) provided that material is freely accessible (i.e. not behind a paywall);

It’s also OK to embed videos onto your site using framing technology, again provided that the material is freely accessible (i.e. not behind a paywall).

Authorised and regulated by the Financial Conduct Authority. La Playa Limited registered in England No. 3605982 Registered office: Merlin Place, Milton Rd, Cambridge, CB4 0DP

La Playa Media & Digital: Insurance with Intelligence® London: +44 (0) 20 3865 0149 Cambridge: +44 (0) 1223 200 650 mediatechinsurance.com

#4 PROMOTIONS “Man, these Oreos are crazy good!” You’ve hit the big league! People have finally realised you’re a super massive huge deal, and now they want you to tell your followers about their stuff. This is great news but you’ve gotta handle it the right way – or it’s gonna be one costly banana skin.

Find a mirror. Preferably the nice big shiny one your sponsor just gave you. Now put your hand on your heart, and ask yourself: am I promoting a product?

Have you declared your interest to your readers/followers/subscribers?

Are you sure you will comply with the ASA rules which help regulate advertising across all forms of media, including online?

Check out the Committee of Advertising Practice guidelines

#5 COMPETITIONS “I’ve got an awesome opportunity for & OFFERS all my followers this month!” Are you running a competition or promoting an offer? Cover all your bases first:

Do people have to pay any money to enter? Make sure you are not running an illegal lottery.

Terms and Conditions - where will you put them?

What information do your viewers need to know if they are entering a competition? Tell them about:

Start date

Closing date

How to enter, are there any specific requirements such as submitting photos, ideas etc.

What the prize is

How many prizes are available

Any restrictions: how many times can people enter, are there any conditions relating to the prize?

Authorised and regulated by the Financial Conduct Authority. La Playa Limited registered in England No. 3605982 Registered office: Merlin Place, Milton Rd, Cambridge, CB4 0DP

La Playa Media & Digital: Insurance with Intelligence® London: +44 (0) 20 3865 0149 Cambridge: +44 (0) 1223 200 650 mediatechinsurance.com

#6 DATA CAPTURE “By entering you agree that I own your soul in perpetuity”

Are you capturing the data of your entrants? The law is about to get tougher on this and the fines are eye-watering…

You will need to have permission to collect, use and share personal data (name, age, email address etc)

Is your privacy policy up to date? It will need to comply with the new General Data Protection Regulation (GDPR)

#7 CONTEMPT Are you discussing or featuring somebody that has been arrested or charged with an offence?

If proceedings are active (upon an arrest or the issue of a warrant) you have to be very cautious about commenting on them. You can be guilty of contempt regardless of intent if you publish some information that can create a substantial risk of serious prejudice or impediment to criminal proceedings.

As your success grows, you become even more of a legal target. Increasingly, YouTubers are facing legal battles ranging from copyright infringement to defamation.

Copyright Infringement

H3H3 are being taken to court by a fellow YouTuber, The Bold Guy, who claims they’ve infringed his copyright. The accused revealed that their defence costs alone are going to top $100,000.

Beyonce is being sued for $20m by the relatives of a deceased YouTuber, Messy Mya (Anthony Barre), whose words and voice were allegedly used in her song “Formation” without permission.

Meanwhile beauty blogger Michelle Phan has been taken to court by Ultra Records for using their music in some of her videos – resulting in an out of court settlement.

Case Studies

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Advertising

Oreos achieved infamy in the UK by paying a series of high profile YouTubers to post videos showing an “Oreo Lick Race”. The YouTubers in question had a collective following of over 7 million. However, the ASA ruled that they had not been upfront with viewers as to the advertorial nature, and forced them to delete the videos. The ASA ruling was seen as a watershed moment in the UK vlogging industry – bloggers now have to be crystal clear when they’re being paid to promote products or face reputational damage with legal consequences.

Defamation

Melania Trump threatened legal action against an autistic YouTuber, James Hunter, who alleged in a video that her son, Barron, may also have autism.

Privacy In the US, privacy damages have reached $600,000 on multiple occasions. Breaches were found that ranged from sharing private content via email, to livestreaming, and twitter.

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Our thanks to Reviewed & Cleared for their contributions to this article.

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www.reviewedandcleared.com

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