7 ms·

Did I Just Give My Permission? The Hashtag as Consent

38 points by negrit 11y ago

digisth 11y ago
It's a complicated topic without nearly enough exploration in the legal area, and without any real agreement from the companies that run these social media platforms. Twitter's ToS (and their reps) have said you can embed anything without needing advanced permission; Instagram says the opposite. Media outlets use embedded tweets/Instagrams for editorial purposes everywhere, and this seems like it would be fair use (taking a snippet of a 140 character message as you would with an article makes no sense) but some people still complain. No one has any problem with embedding YouTube videos or Vines. How this all plays out is likely to be decided in the coming decades in courts and the media. Three things that would be incredibly helpful in this area: 1) All these services should give users the ability to prevent embedding of their posts either globally or on a post by post basis. Drawing a very bright line like this makes what is and is not OK very clear. Off or on by default would be debatable. 2) Supply a UI or API for automatically obtaining licensing permission (requester goes to an Instagram post, clicks/taps "request license to use in/on {web, billboard, TV commercial, etc.}" which sends a message to the original poster, poster can than choose to consent/refuse, response is sent to the requester. 3) Make some public statements / legal guarantees (i.e., a promise to stand behind people who get sued even when using service-provided embedding tools) about what they consider acceptable usage. Right now it's just very gray, and the safe route is to obtain advanced permission for anything with a photo, which I think goes against the frictionless spirit of the old web (i.e., just put up a link or excerpt a post and be done with it.) The service-provided embedding tools try to maintain that spirit in the more walled-gardeny world, but legal uncertainties still make that iffy. I wrote a bit more on this previously: https://medium.com/@sthware/user-generated-content-embedding-and-permission-2ae8b2edcf74 https://medium.com/@sthware/user-generated-content-embedding... I'm not sure what the legal reasoning would be for "hashtags as consent for photo usage", but something tells me that it probably wouldn't hold up in court if it came down to it. Edit: another thing that needs discussion is things that seem innocent to many, but could be legally questionable. Prominent example: retweets. Let's say you embed a Twitter widget of your company's feed on your web site's product page. You retweet something someone has posted about your product. It then appears in the feed, on the web site, next to your products. Protected or not? Using some of the logic from Heigl vs Duane Reade, it might not be: https://social.ogilvy.com/celebrities-suing-brands-for-a-tweet/ https://social.ogilvy.com/celebrities-suing-brands-for-a-twe...
- twiss 11y ago
  YouTube actually allows you to disable embedding a video.
  - digisth 11y ago
    Yeah, YouTube I knew about (though they do make the option a bit harder to find than they should) but AFAIK, there are no equivalents for Vine, Twitter, Instagram, etc. Facebook embeds I haven't looked at, though.
- nsgi 11y ago
  I think it depends on the culture of the site. Instagrams are seen as a bit more personal than tweets or YouTube videos. It's also less obvious that the author might be someone else when it's an image as opposed to a tweet or a video.
  - comrh 11y ago
    A picture of a child seems especially personal too.
- carbocation 11y ago
  Gillette has been promoting positive tweets made by customers, such that they appear as ads in my newsfeed.
- wodenokoto 11y ago
  All of those things are covered by the ToS and EULA, in which the users give the social network a free license to use content as they see fit, including relicensing. At least all major SNS has this type of licensing agreement with users. If the network has an embedding feature, then we must assume that the network allows embedding of content that the network has the right to distribute. I'm quite surprised if Instagram has an embed feature, but says you need to ask permission to use it. If you download the content and host it yourself, that is of course different and you need permission from either the user or the network.
jackvalentine 11y ago
I think its reasonable to think that your content will only be used in a way the platform supports - retweets on twitter, embeds on instagram. The use of those "re-gramming" apps has always seemed a bit wrong to me and ripping the image from the context of the app and using it on your website is a step even further in to wrong.
rrauenza 11y ago
Hashtags can be vague as well -- what if it was a picture of a child at the zoo in front of crocodiles? Who says that particular hashtag gives that particular party permission to use the photo?
TazeTSchnitzel 11y ago
OT, but from the title I expected this would be about people who treat Twitter as if it were a discussion forum and expect a debate from someone who uses a hashtag. It's an obnoxious behaviour, #gamergate is the most famous example.
delinka 11y ago
This is worse than "by continuing to use this site/software you are agreeing to our terms" and would basically be saying "by mentioning this string of characters, you grant us a worldwide, non-exclusive, royalty-free license to your content with or without attribution at our discretion." Unacceptable. I don't see how this should work out any way except in the favor of the copyright holders.
- digisth 11y ago
  Well, using the standard embedding tools, you do get attribution, and a link back to the source (see Twitter, Vine, and Instagram web embeds for examples), but the other parts are generally in the services' TOS. This is from Twitter: "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). Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same." Without this, all those embedded Tweets you see everywhere (like in news stories) wouldn't be available (this is why I think these services should all give you the ability to disable embedding your post(s) like Flickr/YouTube do. It would make everything much clearer and more straightforward.)
mc32 11y ago
I think this can depend on a few things. The license terms under which UGC is uploaded, how UGC is (re-)distributed, (for example retweet vs a capture vs a DL.) and context (part of a news item, or commercial endeavor). However, I think parents especially overshare things about their children. Once you let something out of the bag, it's going to be hard to put it back. And, of course, if you're using something for commercial purpose, you need to seek permission, if you're unsure about the license. However, much of the public's loosey goosey attitude toward copyright can filter into the attitudes of unsophisticated marketing organizations (an intern etc. not familiar with IP thinks they are doing "guerilla" mkting, for example).
- TeMPOraL 11y ago
  > (an intern etc. not familiar with IP thinks they are doing "guerilla" mkting, for example). Try: senior marketer perfectly familiar with IP decides to ignore it thinking they're doing "guerilla" marketing, and then blaming it on an intern if caught. Sleazy industry, sleazy standard practices.
TickleMeHellNo 11y ago
You can't inadvertently shill if you keep your mouth shut, you can't be misconstrued as consenting if you don't hashtag. Maybe it's time to think about how unnatural it is for us to be sharing this much of our lives online, instead of complaining about corporations doing what corporations do, which is overstep the bounds of good taste and sanity in the name of making another buck.
- kylnew 11y ago
  No kidding. I don't use a hashtag or even mention a brand name online without understanding the consequences.
  - TeMPOraL 11y ago
    No, this is wrong. We should have an ability to discuss any brand however we like without said brand pulling it into their marketing engine.
    - kylnew 11y ago
      Say crappy things about a brand online and I promise it won`t go in the marketing engine. What positive things are you saying publicly about a brand with hashtags that you also are trying to protect from being reused? Honestly though, I don't really advocate the way corporations do these things but I'm also in support of using my brain before posting content given the current circumstances.
jrandm 11y ago
"If you Tweet with a hashtag on a public account, anyone who does a search for that hashtag may find your Tweet" https://support.twitter.com/articles/49309 https://support.twitter.com/articles/49309 - and first result searching for anything like 'Twitter hashtag'. I think that's pretty clearly publishing and explicitly choosing to make your image/thought/whatever available to whatever you #mention. That does seem like granting permission for the #brand to share the content through social spaces. I'd expect them to ask permission before using it in "actual" advertisements (billboards, signs, commercials, etc), but anything shy of that seems like fair game. The nearest thing I can think to compare it to (pre-Internet) would be mailing a photo to the company; what would you expect them to do with it?
- cgm616 11y ago
  It's more like pinning a photo on a pinboard you share with a group of friends. Mailing it would be like sending it to them directly. I think hashtags are more of a way to share to a group, where as mentioning with @ is a driect way of communicating that you want to give them the picture. This is because hashtags aren't owned by anyone, but usernames are.
  - jrandm 11y ago
    But it's nothing like a pinboard with a group of friends. Instagram (I wrongly assumed it was Twitter) allows you to only share with friends; this post would be more like posting on a public bulletin board with a giant flashing sign that says 'CROCS(tm) PLZ LOOK.' Hashtags are generic, certainly, but this usage was contextually relevant (with photographic proof) and clearly meant to represent that entity. Additionally, crocs is their registered trademark -- it's not unreasonable for them to search a massively popular image publishing platform for images their customers choose to share attached to their brand, nor for them to take those images and say 'Look at these happy customers!' in a non-commercial context (ie: on their website, in a photo gallery of customer photos). I believe it's straightforwardly analogous to mailing the photo directly, though perhaps posting to every bulletin board in the country with a giant label might be a more exact match. If anything a (public) hashtag implies you want it to be easily seen by the entity tagged -- or anyone interested in it -- as a tag doesn't specify an individual.
mirceal 11y ago
Once you put it online w/ public access I think it's fair game. I'm more in the camp of: don't put things you don't want other to share / look at online (yes, pictures of your kids especially)
- csydas 11y ago
  I think this is slightly misguided in this case; I think your position is more used for safety purposes rather than the copyright purposes here (i.e., while both touch on what happens to someone's personal data once online, your example seems to be more about protection and the article is talking about a business agreement) If the door was allowed to swing both ways, and users could assume that anything that businesses upload is fair game to copy and use for their personal sites, it wouldn't be as egregious. But in many cases, corporations hold far more power when it comes to takedowns for copyrighted material. What is being argued here is that the hashtags should count as consent, but I think that's really bad because there isn't really any way to give informed consent in the form of a hashtag. Each corporation is going to have different media replication terms and conditions that they offer, and I don't think that you should be able to give away rights to a work without actually knowing what you're agreeing to. As an aside, I'm aware that often people sign agreements without reading the entirety of the agreement and have no idea what they're agreeing to. In that instance, they at least have the chance to know what it is they're agreeing to and they choose to ignore it. If hashtags become consent, the users wouldn't even have a chance to read the agreement before they agree to it. That just seems like horrible precedent to set.
marknadal 11y ago
I find it interesting that nobody is mentioning the inverse - plenty of HNers seem to think it is okay to redistribute companies' generated content (and I agree with piracy) yet many of you here are somehow thinking that because of "privacy" on a perfectly public website like Twitter that a company shouldn't be allowed to redistribute what (unfortunately) is content that Twitter owns (because the user submitted to Twitter and Twitter's terms). But what ever happened to the privacy rights of companies' generated content, why shouldn't they require you to get permission before you reshare that pirated content? I sniff double standards.
Dylan16807 11y ago
> Legally speaking, a lack of case law means the jury’s out. But for brands striving to connect with their constituency, it’s clear that more explicit permission is needed for brand-based tags (e.g. #calvinklein), or more complicated tags (e.g. #caughtondropcam) need to be used so that the claim of implied consent is more defensible. Specific tags only solve half the problem. Someone could copy the tag from someone else without being aware of the campaign going on.
lukeh 11y ago
I got this other day for a music sync. Retweet to approve. C'mon guys... https://twitter.com/_Live_Better/status/651734344487333888 https://twitter.com/_Live_Better/status/651734344487333888

38 points by negrit 11y ago

It's a complicated topic without nearly enough exploration in the legal area, and without any real agreement from the companies that run these social media platforms. Twitter's ToS (and their reps) have said you can embed anything without needing advanced permission; Instagram says the opposite. Media outlets use embedded tweets/Instagrams for editorial purposes everywhere, and this seems like it would be fair use (taking a snippet of a 140 character message as you would with an article makes no sense) but some people still complain. No one has any problem with embedding YouTube videos or Vines. How this all plays out is likely to be decided in the coming decades in courts and the media. Three things that would be incredibly helpful in this area: 1) All these services should give users the ability to prevent embedding of their posts either globally or on a post by post basis. Drawing a very bright line like this makes what is and is not OK very clear. Off or on by default would be debatable. 2) Supply a UI or API for automatically obtaining licensing permission (requester goes to an Instagram post, clicks/taps "request license to use in/on {web, billboard, TV commercial, etc.}" which sends a message to the original poster, poster can than choose to consent/refuse, response is sent to the requester. 3) Make some public statements / legal guarantees (i.e., a promise to stand behind people who get sued even when using service-provided embedding tools) about what they consider acceptable usage. Right now it's just very gray, and the safe route is to obtain advanced permission for anything with a photo, which I think goes against the frictionless spirit of the old web (i.e., just put up a link or excerpt a post and be done with it.) The service-provided embedding tools try to maintain that spirit in the more walled-gardeny world, but legal uncertainties still make that iffy. I wrote a bit more on this previously: https://medium.com/@sthware/user-generated-content-embedding-and-permission-2ae8b2edcf74 https://medium.com/@sthware/user-generated-content-embedding... I'm not sure what the legal reasoning would be for "hashtags as consent for photo usage", but something tells me that it probably wouldn't hold up in court if it came down to it. Edit: another thing that needs discussion is things that seem innocent to many, but could be legally questionable. Prominent example: retweets. Let's say you embed a Twitter widget of your company's feed on your web site's product page. You retweet something someone has posted about your product. It then appears in the feed, on the web site, next to your products. Protected or not? Using some of the logic from Heigl vs Duane Reade, it might not be: https://social.ogilvy.com/celebrities-suing-brands-for-a-tweet/ https://social.ogilvy.com/celebrities-suing-brands-for-a-twe...

twiss 11y ago
YouTube actually allows you to disable embedding a video.
- digisth 11y ago
  Yeah, YouTube I knew about (though they do make the option a bit harder to find than they should) but AFAIK, there are no equivalents for Vine, Twitter, Instagram, etc. Facebook embeds I haven't looked at, though.
nsgi 11y ago
I think it depends on the culture of the site. Instagrams are seen as a bit more personal than tweets or YouTube videos. It's also less obvious that the author might be someone else when it's an image as opposed to a tweet or a video.
- comrh 11y ago
  A picture of a child seems especially personal too.
carbocation 11y ago
Gillette has been promoting positive tweets made by customers, such that they appear as ads in my newsfeed.
wodenokoto 11y ago
All of those things are covered by the ToS and EULA, in which the users give the social network a free license to use content as they see fit, including relicensing. At least all major SNS has this type of licensing agreement with users. If the network has an embedding feature, then we must assume that the network allows embedding of content that the network has the right to distribute. I'm quite surprised if Instagram has an embed feature, but says you need to ask permission to use it. If you download the content and host it yourself, that is of course different and you need permission from either the user or the network.

jackvalentine 11y ago

I think its reasonable to think that your content will only be used in a way the platform supports - retweets on twitter, embeds on instagram. The use of those "re-gramming" apps has always seemed a bit wrong to me and ripping the image from the context of the app and using it on your website is a step even further in to wrong.

rrauenza 11y ago

Hashtags can be vague as well -- what if it was a picture of a child at the zoo in front of crocodiles? Who says that particular hashtag gives that particular party permission to use the photo?

TazeTSchnitzel 11y ago

OT, but from the title I expected this would be about people who treat Twitter as if it were a discussion forum and expect a debate from someone who uses a hashtag. It's an obnoxious behaviour, #gamergate is the most famous example.

delinka 11y ago

This is worse than "by continuing to use this site/software you are agreeing to our terms" and would basically be saying "by mentioning this string of characters, you grant us a worldwide, non-exclusive, royalty-free license to your content with or without attribution at our discretion." Unacceptable. I don't see how this should work out any way except in the favor of the copyright holders.

digisth 11y ago
Well, using the standard embedding tools, you do get attribution, and a link back to the source (see Twitter, Vine, and Instagram web embeds for examples), but the other parts are generally in the services' TOS. This is from Twitter: "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). Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same." Without this, all those embedded Tweets you see everywhere (like in news stories) wouldn't be available (this is why I think these services should all give you the ability to disable embedding your post(s) like Flickr/YouTube do. It would make everything much clearer and more straightforward.)

mc32 11y ago

I think this can depend on a few things. The license terms under which UGC is uploaded, how UGC is (re-)distributed, (for example retweet vs a capture vs a DL.) and context (part of a news item, or commercial endeavor). However, I think parents especially overshare things about their children. Once you let something out of the bag, it's going to be hard to put it back. And, of course, if you're using something for commercial purpose, you need to seek permission, if you're unsure about the license. However, much of the public's loosey goosey attitude toward copyright can filter into the attitudes of unsophisticated marketing organizations (an intern etc. not familiar with IP thinks they are doing "guerilla" mkting, for example).

TeMPOraL 11y ago
> (an intern etc. not familiar with IP thinks they are doing "guerilla" mkting, for example). Try: senior marketer perfectly familiar with IP decides to ignore it thinking they're doing "guerilla" marketing, and then blaming it on an intern if caught. Sleazy industry, sleazy standard practices.

TickleMeHellNo 11y ago

You can't inadvertently shill if you keep your mouth shut, you can't be misconstrued as consenting if you don't hashtag. Maybe it's time to think about how unnatural it is for us to be sharing this much of our lives online, instead of complaining about corporations doing what corporations do, which is overstep the bounds of good taste and sanity in the name of making another buck.

kylnew 11y ago
No kidding. I don't use a hashtag or even mention a brand name online without understanding the consequences.
- TeMPOraL 11y ago
  No, this is wrong. We should have an ability to discuss any brand however we like without said brand pulling it into their marketing engine.
  - kylnew 11y ago
    Say crappy things about a brand online and I promise it won`t go in the marketing engine. What positive things are you saying publicly about a brand with hashtags that you also are trying to protect from being reused? Honestly though, I don't really advocate the way corporations do these things but I'm also in support of using my brain before posting content given the current circumstances.

jrandm 11y ago

"If you Tweet with a hashtag on a public account, anyone who does a search for that hashtag may find your Tweet" https://support.twitter.com/articles/49309 https://support.twitter.com/articles/49309 - and first result searching for anything like 'Twitter hashtag'. I think that's pretty clearly publishing and explicitly choosing to make your image/thought/whatever available to whatever you #mention. That does seem like granting permission for the #brand to share the content through social spaces. I'd expect them to ask permission before using it in "actual" advertisements (billboards, signs, commercials, etc), but anything shy of that seems like fair game. The nearest thing I can think to compare it to (pre-Internet) would be mailing a photo to the company; what would you expect them to do with it?

cgm616 11y ago
It's more like pinning a photo on a pinboard you share with a group of friends. Mailing it would be like sending it to them directly. I think hashtags are more of a way to share to a group, where as mentioning with @ is a driect way of communicating that you want to give them the picture. This is because hashtags aren't owned by anyone, but usernames are.
- jrandm 11y ago
  But it's nothing like a pinboard with a group of friends. Instagram (I wrongly assumed it was Twitter) allows you to only share with friends; this post would be more like posting on a public bulletin board with a giant flashing sign that says 'CROCS(tm) PLZ LOOK.' Hashtags are generic, certainly, but this usage was contextually relevant (with photographic proof) and clearly meant to represent that entity. Additionally, crocs is their registered trademark -- it's not unreasonable for them to search a massively popular image publishing platform for images their customers choose to share attached to their brand, nor for them to take those images and say 'Look at these happy customers!' in a non-commercial context (ie: on their website, in a photo gallery of customer photos). I believe it's straightforwardly analogous to mailing the photo directly, though perhaps posting to every bulletin board in the country with a giant label might be a more exact match. If anything a (public) hashtag implies you want it to be easily seen by the entity tagged -- or anyone interested in it -- as a tag doesn't specify an individual.

mirceal 11y ago

Once you put it online w/ public access I think it's fair game. I'm more in the camp of: don't put things you don't want other to share / look at online (yes, pictures of your kids especially)

csydas 11y ago
I think this is slightly misguided in this case; I think your position is more used for safety purposes rather than the copyright purposes here (i.e., while both touch on what happens to someone's personal data once online, your example seems to be more about protection and the article is talking about a business agreement) If the door was allowed to swing both ways, and users could assume that anything that businesses upload is fair game to copy and use for their personal sites, it wouldn't be as egregious. But in many cases, corporations hold far more power when it comes to takedowns for copyrighted material. What is being argued here is that the hashtags should count as consent, but I think that's really bad because there isn't really any way to give informed consent in the form of a hashtag. Each corporation is going to have different media replication terms and conditions that they offer, and I don't think that you should be able to give away rights to a work without actually knowing what you're agreeing to. As an aside, I'm aware that often people sign agreements without reading the entirety of the agreement and have no idea what they're agreeing to. In that instance, they at least have the chance to know what it is they're agreeing to and they choose to ignore it. If hashtags become consent, the users wouldn't even have a chance to read the agreement before they agree to it. That just seems like horrible precedent to set.

marknadal 11y ago

I find it interesting that nobody is mentioning the inverse - plenty of HNers seem to think it is okay to redistribute companies' generated content (and I agree with piracy) yet many of you here are somehow thinking that because of "privacy" on a perfectly public website like Twitter that a company shouldn't be allowed to redistribute what (unfortunately) is content that Twitter owns (because the user submitted to Twitter and Twitter's terms). But what ever happened to the privacy rights of companies' generated content, why shouldn't they require you to get permission before you reshare that pirated content? I sniff double standards.

Dylan16807 11y ago

> Legally speaking, a lack of case law means the jury’s out. But for brands striving to connect with their constituency, it’s clear that more explicit permission is needed for brand-based tags (e.g. #calvinklein), or more complicated tags (e.g. #caughtondropcam) need to be used so that the claim of implied consent is more defensible. Specific tags only solve half the problem. Someone could copy the tag from someone else without being aware of the campaign going on.

lukeh 11y ago

I got this other day for a music sync. Retweet to approve. C'mon guys... https://twitter.com/_Live_Better/status/651734344487333888 https://twitter.com/_Live_Better/status/651734344487333888