To most of us, what you can and can't write about on social media is something so obvious that we don't even need to be told. Basically:
- don’t post racist, homophobic, sexist, or any other sort of bigoted content;
- don’t post sexually explicit or graphically violent content; and
- don’t harass, bully, or intimidate people.
I say “most people”, as groups surface at times that advocate violence or derogatory attitudes towards various societal and/or minority groups, and that suggests that there is a portion of humanity that does need to be told what you can and can't write about on social media. Facebook, Twitter, YouTube and other social media channels all specifically state in their terms and conditions that you can't post any of the above listed content and you can’t use their channels to do anything discriminatory or unlawful, or they will delete your account (the efficacy of this is another issue in itself).
Social media terms and conditions also require you to comply with copyright and defamation laws, which I wrote about in detail in a previous column.
The most confusing issue is whether you still own the content you create and post. Below is a look at the content ownership clauses on key social media channels. I wouldn’t be a very good lawyer if I didn’t take this opportunity to remind you that the explanation below is no substitute for reading through the full terms and conditions.
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
Facebook users keep ownership of their content, but under Facebook's "Statement of Rights and Responsibilities", users give Facebook a license to use any content that is covered by intellectual property rights. Facebook states photos and videos, but this also covers anything you write in a status update. It would be impossible for interaction to work on Facebook as it does without this license. Your content is yours to keep and share and sell as you desire (this is where the non-exclusive part of the license comes into play), but the transferable and sub-licensable conditions on the license are murky and there are no qualifications explaining the entities or people that Facebook may share your content with (take from this what you will…) or explanation of situations where they may want to transfer your license (a transferrable IP license in a corporate context would usually be in instances of a merger or takeover, but I’m a little more cynical when it comes to social media).
The other issue that is a concern here is the applications. While Facebook “asks that applications respect your privacy”, it also specifically states that, “your agreement with that application will control how the application can use, store, and transfer that content and information”, so to be fully aware of how what licenses you are giving over your work, you’d also need to read the terms and conditions of each individual Facebook application that you use.
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Twitter has a nice approach to writing their terms of use. It’s written in plain English (something that hasn’t taken much hold in American agreements and contracts yet), and is littered with highlighted "tips" throughout the document, explaining like I do in these columns what clauses mean practically for their users. You own your content, but give Twitter a license to use it so that it can make your tweets available online and so that other users can retweet your tweets. Similarly to Facebook, this license comes with the right to sublicense your content. The next clause in Twitter's Terms of Service explains this in a little more detail, stating:
You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.
So, similarly to Facebook, you'd need to go through Twitter's partners to see where your content may be used.
Twitter also states that you won’t get paid for your content, and that its license extends to modifying or adapting your content:
We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.
1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service's Privacy Policy...
2. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
3. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
Instagram are seen as the big baddies of social media after the terms of use controversy at the end of 2012. But are they really asking for anything different to the other key players in the social media world? Not entirely. They are more explicit, however, in stating how they can modify your content, specifically, for advertising.
Overall, social media channels have very similar terms and conditions (slightly modified depending on what portion of the social media market they target): users keep their content and can share and sell this in any way they desire, but users allow the channel to retain a license, and the ability to transfer or sublicense this license. And realistically, your choices are to either use social media and abide by their terms and conditions, or don't use social media. Much like banks and telecommunications companies, us mere mortals have no ability to negotiate the terms and conditions for these products or services, and we have to accept them as they are.
YouTube
For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
YouTube's terms have a more legalistic feel to them, I expect due to its age in the scheme of social media channels. And given the environment YouTube operates in, it seems more concerned about protecting itself from any liability in relation to users' content, rather than assuring them that they retain ownership in their content, at least in comparison to the newer social media channels and how they draft their terms of service. At any rate, the terms are still very similar — the user retains ownership of their content and gives YouTube a transferable and sublicensable license, and also gives other YouTube users a non-exclusive license over their content.
What are your thoughts on social media and licensing your content?
Disclaimer: This column does not create a client-attorney relationship and is not intended as legal advice. Should you need any legal advice, speak to an attorney who is skilled in the area and jurisdiction you require.
About the author
In a previous life, Jessica worked for 12 years in the legal industry, with her last purely legal role being the corporate counsel for a property management company in Australia. Since then, she’s been the editor for an online literary journal and currently manages a music/tech start-up. She also freelancers as a contract lawyer and content producer, and writes regular columns for Litreactor and Gypsy Girl.
Jessica’s fiction and poetry has appeared in or is upcoming in Andromeda Spaceways Inflight Magazine (Aus), Beware the Dark (UK), Kaleidotrope, Plasma Frequency Magazine, and Pantheon Magazine.
She loves swimming, and like Peter Singer, considers herself a flexible vegan and focuses on the welfarist approach to animal rights.
