The use of social media in IP investigations

We've had a client ask us recently about how and when we use someone's personal social media account in a non-contentious IP matter. We're not talking about the sale or advertising of counterfeits or infringing goods that takes place on social media (that's a huge topic for a different day), but those times when the answer to a low-level infringement or an in-use investigation has to go into social media to find information. It's an interesting point, because while someone's social media output is in the public domain, issues of privacy still come into play.

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From a legal standpoint, some of the boundaries are in a grey area. Most laws relate to obvious points which no-one is supposed to breach: accessing personal communications or illicitly entering password or privacy protected areas. These are entirely out of bounds, so rule out the use of WhatsApp, Messenger and similar communication systems as a method of research (although not as a method of communication). Legal guidance on the use of social media platforms as an investigative tool is provided by the Crown Prosecution Service and is focused on criminal investigations.[i]

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Although some people may consider their social media output to be personal, it is still information they are choosing to put into the public domain, and is therefore accessible by everyone. And some of that information may be evidence of infringement, or it may relate to a commercial activity or use of a trademark that is not available to find on the more traditional areas of the internet.

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As with all things when personal life is concerned, care, discretion and proportionality is the key driver in deciding what steps to take and how much of a person's social media to access. In most investigations, a personal social media account is not used as a research tool because there is no need. Occasionally, however research may need to be undertaken, but this is only when necessary and only when there is a good chance of the information being available.

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Reporting the findings of social media output is also an area where care, discretion and proportionality are key. No superfluous information or imagery should be included, no intrusions into personal matters, and only information relating to the commercial use or misuse of IP should be reported.

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Like most things in investigations, what is seemingly a simple point can have deeper implications that need to be examined before any action is taken, and dealing with personal information is one that needs sensible and sensitive handling.

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[i] "Social Media: Reasonable Lines of Enquiry" (accessible at https://www.cps.gov.uk/legal-guidance/social-media-reasonable-lines-enquiry) is the main piece of guidance they provide, but this is aimed at criminal matters.