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Number four: threatening tweets

A tweet could amount to an assault if the person to whom it was directed has a genuine belief that physical harm is imminent. A series of tweets which cause psychological damage to another person may also offend UK criminal law. Criminal sanctions would apply in these cases. A tweet could also amount to intimidation if the tweeter makes a threat to engage in unlawful conduct (for example, violence, destroying property or in some circumstances breaching contractual obligations), which coerces another person into doing something for which they suffer loss or damage. The tweet must however be more than "idle abuse" to offend the law of intimidation. An intimidating tweet could result in a claim for compensation for loss or damages suffered.

The test: Generally, an intention to cause harm or intimidation may offend either criminal or civil wrong laws.

Number three: tweets revealing personal or confidential information

Data protection laws protect against processing of personal information without permission. The rules do not apply to purely personal and household activities. It is unclear whether statements made on twitter could ever be said to be 'purely personal or of a household nature.' Where they are not, there is a risk that data protection laws may be breached if consent is not obtained before revealing another person's personal information. The penalty for breaching data protection laws vary across Europe. In the UK, a breach of data protection laws may result in fines and criminal convictions.

Particularly in the employer-employee context, a person may be bound to keep information of another confidential. A tweet breaching any such obligation could result in a claim for damages or an account of profits for any income made as resulting from the exposed information.

The test: Tweets revealing personal details about another person without their consent may breach data protection laws.

Number two: copied tweets

A tweet could offend copyright law if it reproduces even part of an isolated sentence from a copyright work. Copyright law has changed dramatically over the last few years. Generally, UK laws tended to look at whether a substantial part of a copyright work had been reproduced, publicly made available, distributed, translated or adapted without a copyright holders consent. Substantiality was measured both qualitatively and quantitatively. UK laws also concentrated on whether skill, judgement and labour went into the preparation of a work before concluding that copyright subsists in it. However the effect of a recent European Court of Justice (ECJ) decision, which UK law must conform to, may mean that isolated sentences must be looked at disjunctively from a whole copyright work in order to determine whether an infringement has occurred. Further ECJ decisions have suggested that rather than look for skill, judgement or labour in putting words together, there must be an assessment of whether or not an author has exercised creative choices in the form of intellectual effort in arranging words, images or sounds. Claims for damages for loss suffered and criminal charges with prison sentences of up to two years can result from a tweet that infringes copyright law.

The test: A tweet which reproduces the work of another without consent will offend copyright law if that work gives evidence of another's creative choices in arranging words, images or sounds.

Number one: branded tweets and hashtags

Hashtags, marked with the '#' symbol, are used in order to alert users to relevant conversations taking place on Twitter. There is a risk, however, that combining a hashtag with the trade mark of another person could result in trade mark infringement. Trade mark law generally protects the trade mark owner against use of its trade mark without permission in a way that may create a likelihood of confusion or association with other similar products or services. Where a trade mark has a significant established reputation, the protection will extend to association with any products or services (not merely similar ones) in a manner that amounts to taking an unfair advantage or is detrimental to the distinctive character or repute of the established mark. Use of hashtags in these circumstances potentially could result in a damages claim.

The test: Does the use of a hashtag create a likelihood of association or confusion with the products or services of a trade mark owner?

Conclusion

Twitter raises important issues about privacy, free speech, censorship and individual rights and responsibilities. Of course, there is nothing stopping a person from self-incriminating themselves by tweets revealing illegal conduct such as the reports of a doctor on sick leave. The balance struck by UK law will differ from that struck in other places. Twitter users in both commercial and non-commercial contexts should understand this balance.

Luke Scanlon is a technology law expert at Pinsent Masons, the law firm behind Out-Law.com

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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