Is a tag accompanied by hash character equivalent to author consent?

Authors: Erikas Saukalas, a partner at METIDA, attorney-at-law; Aurimas Sobutas, Lawyer at METIDA

  • Hashtag – part of today’s social networks life
  • Using without permission – illegal?
  • Would be smart to think before tagging

As technology progresses in the digital age, ordinary users of social networks as well as business create tags accompanied by hash character, i.e. the character (#) often seen in social networks that enables to link specific content to a certain subject. Users use the hash character not only in combination with their own tags but also with those created by other persons to publish their user-generated content, i.e. photos, images, videos, blog entries or even musical works. For example, #love, #instagood, #photooftheday are the most popular hashtags used on the Instagram social network in the last two years.

screenThe fact that users publish their user-generated content using a tag created by another person in combination with the hash character does not mean that the person is free to use it for his own needs. User-generated content may be copyright protected, therefore the use without the explicit consent of the copyright owner is illegal. For example, a Tasmanian travel agency was approached by photographers who had shared photos with #discovertasmania hashtag on its Instagram account. They claimed they had not given their consent to use the photos on advertising screens at airports for commercial purposes, therefore their rights had been infringed.

Consent may be obtained in different ways

For example, an Instagram user published a photograph on his personal account using the hash character alongside with the YesColorado tag created by the Scottish Tourist Board. The Scottish Tourist Board liked the photo and decided to use it in their advertising. They asked for the user’s consent by writing the following in the comments section: “We would like to use the photo in our advertising by sharing it with others. If you approve and are more than 18 years of age, please, reply to this comment with #YesColorado. The user replied to the comment expressing his consent and the reply was perfectly sufficient for the photograph to be used legally.

There are cases when the rules published by business organisations specifically for marketing campaign purposes provide that placement of the hash character and a tag created for the campaign next to publicly available user-generated content implies permission to the campaign organiser to use such content. The Share a Coke campaign can be mentioned as an illustration; during the campaign users were encouraged to publish photos with Coca-Cola bottles in social media using the #shareacoke hashtag, thus giving implied consent to use the photo in Coca-Cola communication. During Art of the Trench campaign, the users of Instagram, Twitter or Pinterest social networks also published photos of themselves wearing Burberry raincoats, accompanied by hashtags #ArtoftheTrench or #AOT.

The examples indicate that in certain cases the use of the hash character in combination with a specific tag may imply the consent of the person who has published the specific user-generated content to use it. It is, however, always useful to consider the period and the scope of the consent of the person who has published the specific user-generated content. Otherwise, claims could be expected.

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