Legal and Ethical Issues in Interactive Media Industries
Legal Issues
This post covers some of the legal and ethical issues that arise in the interactive media industries.
Authorship and ownership issues: Intellectual Property Rights
A creator's work is owned by them - it is their intellectual property (IP), unless they choose to sign over the ownership of their creation.
Intellectual Property rights allow you to make money from the created artefact. Examples of creations include photographs, illustrations, video media and logos. These can belong to an individual, more than one individual or an organisation.
UK Intellectual Property law divides IP into 2 categories (Intellectual Property Law - Gov.UK): IP which attracts automatic protection through copyright (for example, novels, paintings, photos and films), and IP for which an application for protection must be made (product names, logos, jingles, inventions and products).
Copyright ©
Copyright is a way of preventing intellectual theft. For instance, photographs made for a website are the property of the photographer, but can be used on licence by the website owner for the specific purpose of that website, or for another purpose negotiated with the photographer.
Photographs posted on social media websites remain the intellectual property of their creator, unless otherwise agreed. In a (now-reversed) 2012 decision following its acquisition by social media giant Facebook, Instagram informed its users that in consenting to use of the platform, they were agreeing for their personal images to be potentially sold to third parties for use in advertisements, without compensation to the creators of those images. This information was hidden in small print of an EUA (End-User Agreement), and continued use of the site was taken as automatic agreement to relinquish copyright over images posted by users.
However, social media channels are increasingly taking steps to minimise copyright infringement on their sites.
Trademarks
A trademark is a legally protected, recognisable sign, symbol or device that identifies your company's work.
Examples of trademark symbols
From the film industry, examples of trademarked IP could include the Warner Bros logo, or the clip of MGM's lion roaring.
A video clip of the MGM roaring lion device
Patents
Patenting is the process of specifically applying to the government for protection for your intellectual property, in exchange for a full public disclosure of the details of your invention. A patent gives the inventor the right to challenge other people in court if they attempt to make, use or sell the invention for a period of 20 years from the date that the patent application was filed.
Patents offer limited protection internationally, as they are enforced on a country-by-country basis. To give an example: if someone working in the UK patented an interactive media product such as an app, a developer in China could still copy and sell the app in China, but they would infringe patent law if they sold the app in the UK.
However, there are numerous examples of successful enforcement of patent law. In the early 2000s, one-time Apple rival, Creative Technology, sued Apple for infringing on the patented menu structure for their MP3 player , a similar version of which was used in the first iPod. The dispute was settled 5 years later, with Apple agreeing to pay Creative Technology $100 million for the menu structure.
Creative Technology's Nomad MP3 menu and the 1st generation iPod (image from eBay user fretsoflife)
Data Protection Act: Privacy
In the UK, the Data Protection Act is enforced by the ICO (Information Commissioners Office) and controls how personal information is used. Any company that captures personal data is bound by this act.
There are 7 principles of the data act, which can be summarised as follows:
- Only take personal information that is necessary.
- Keep personal information only for as long as is necessary.
- Keep the data with a 'safe harbour' area (that is, within the EU)
- Personal data must be kept securely.
- An individual has the right to know and request the information that a company holds about them.
- A company or organisation must try to make the information accurate, and the data subject has the right to request corrections to any inaccuracies.
- The data subject has the right to request that the data be deleted.
Every company must have a data controller who is responsible for the personal information held about data subjects.
Data breaches are a common news item, with Facebook having faced several misuses of user's personal data in the past few years. The Cambridge Analytica scandal of 2015, in which data from 87 million accounts was illegally harvested through a 3rd party app hosted by Facebook, is thought to have influenced the outcome of the 2016 USA presidential elections through the sale of user data to political campaigns (50 million Facebook profiles harvested for Cambridge Analytica in major data breach - The Guardian).
The effect of such data breaches is to damage a company's reputation through the erosion of trust.
Libel and Slander
Libel and slander are, respectively, written and spoken defamation of character or reputation. They are covered by civil, rather than criminal law, which in basic terms means that it costs money to take someone to court.
Libel
An example of libel in website design would be publishing something derogatory about someone, or alleging that they were involved in a criminal act before the facts were proven at a trial.
Libel cases occur regularly in the news media. Johnny Depp filed (and lost) a libel case against the Sun newspaper in 2020 over their publication of allegations that he beat his ex-wife (Johnny Depp loses libel Case - BBC).
Sky News reporting of Johnny Depp's libel case
In 2018, Cliff Richard won his libel case against the BBC for their 2014 helicopter footage of his home (Cliff Richard: Singer wins BBC privacy case at High Court). Sir Cliff was never arrested or charged.
Libel often has the impact of negatively affecting the career or the reputation of the person defamed. A website, media organisation, or individual committing libel could be sued, creating financial and legal repercussions.
One way in which news outlets avoid committing libel is by using phrases such as 'allegedly' when referring to unconfirmed negative information or criminal acts.
Slander
Much as libel cases are brought about because the object of libel feels (or wishes to portray) that the allegations are unjust, slander cases can be brought by celebrities who are the target of untrue and damaging verbal statements. Sometimes, comments made on social media are approached as slander cases because of the similarity between the immediacy and informality of statements made using this medium and the spoken word.
In the creative media sectors, slander could take the form of making unsubstantiated comments about a fellow professional which could harm their reputation or business.
Equality Act 2010: Accessibility
The Equality Act of 2010 protects people against discrimination on the basis of age, race, gender, sex, disability, religion or belief, marital status or pregnancy status. These are known as 'protected characteristics'.
Illustration of the 9 protected characteristics from a local government website (Swindon JSNA)
In the interactive media industries, this means avoiding negative portrayal of people with these protected characteristics on a webpage. Equally, no user must be put at a significant disadvantage when they are using a website.
Under the Equality Act 2010, website owners are obliged to make 'reasonable adjustments' to make their website accessible to users with impairments affecting their vision, hearing or mobility.
Accessibility is important for 2 main reasons: firstly, it's the law. In the case of public sector websites, the design and content need to be clear enough so that most people can use it without needing to adapt it (Accessibility Law 2018). The second main reason is commerciality: it is generally desirable for developers to enable as many users as possible to be able to use their website.
Accessibility in web design
4 main areas need to be kept in mind when designing interactive media for the web. These are language, motor, visual and audio.
1. Language
It's important to make the language used on a website clear for the reader so that they can understand the content. Public information websites in particular need to be written in such a way that as many people as possible can access the information.
In the UK, this is particularly important: 1 in 6 adults struggles with literacy and has a reading age equivalent to that expected of a 9 to 11 year-old. The Plain English Campaign offers an accreditation scheme, under which websites can pay to obtain a seal of approval (a logo of a crystal) to display on their webpages. The Plain English Campaign also offer free guides to help copy writers and web designers make their content clear and easy to understand.
Writing clear copy, using shorter sentences and avoiding ambiguity also helps with machine translation. This is a consideration for websites where target audiences may be reading the site through the use of a 3rd party plug-in such as Google Translate.
On websites aimed at lower level speakers of other languages, users with severe dyslexia or people with moderate to severe learning difficulties, the use of icons and images to help support the meaning of text can be helpful. Here is an example produced by Mencap aimed at helping people with learning disabilities stay abreast of the latest changes to coronavirus restrictions in the UK:
The use of images more generally can contextualise the written word, and helps even more able readers to skim and scan a text. Breaking up text-dense pages with images, diagrams or charts can also help the reader's attention to and retention of textual information.
On the other hand, there are certain situations where the writer may intentionally seek to obfuscate their meaning. Through the use of technical jargon and long, impenetrable passages, End-User Licence Agreement authors greatly reduce the chance that you, the end user, will actually read the full text. This is a desirable outcome for many companies who may wish to absolve themselves of legal responsibility for your use of the product, or store your personal data for their marketing purposes. If end users were fully aware of all the terms and conditions, they might be find the prospect off-putting and not continue with their purchase or use of the service.
2. Motor skills
For people who have impaired mobility, it is important to make web products as navigable as possible. Large call-to-action buttons provide users with mobility impairments a bigger target to hit, however software and hardware adaptations tend to be made mainly at the user's end.
For instance, to be able to accurately click on in-text links, a user with limited dexterity may choose to use their browser to enlarge the webpage font. Similarly, they may prefer to scroll through a page by using the arrow keys on their keyboard ( ← ↑↓→) rather than use a mouse. Keyboard and mouse-controlled devices can also be more suitable for people with poor circulation who may find touch screens unresponsive.
For individuals with more severe mobility limitations, assistive technology can have an empowering and enabling effect. Eye tracking hardware and software can be used to navigate pages, type documents and perform operations normally carried out manually. Other examples of assistive human-computer interfaces include physicist Stephen Hawking's cheek twitch-activated communication system.
Getty Creative Commons image of Stephen Hawking, showing his cheek-twitch activated voice generator
3. The visual element: Web design for visually impaired users
Much like users with mobility issues may chose to, people who have a severe visual disability or who are totally blind must use the keyboard, rather than the mouse to navigate the web. This is because a mouse requires hand-eye co-ordination. Someone who is totally blind will need to use screen reader technology to obtain information from web pages. hobo has some interesting information about how screen readers work in conjunction with keyboard navigation, but in brief, an important consideration for web designers is to include 'alt descriptions' with all non-text content, so that a screen reader can describe what the image or graphic shows. Alt descriptions have the added benefit of helping with search engine optimisation: search engines can't 'read' images in the same way as text, but they can index an image according to its html textual description.
A visually impaired female student pursuing higher education with a laptop in Odisha, India
Call-to-action buttons and links also benefit from text labels that describes their function (e.g. 'Buy now' rather than 'Click here'), as some accessibility software provides blind users with a single page giving an overview of all the subheadings and links on a given webpage. This 'summary page' helps these users to get an overview of the content of a web page and browse the web at speed. Subheadings also help sighted viewers to skim-read a page at speed and find content that interests them.
For partially sighted users or those with colour blindness, strongly contrasting colours can help make web pages easier to read, although the option to change the colour palette, contrast and enlarge the text size is nowadays largely available through the user's browser.
For both blind and visually impaired people, text dictation software can be a useful tool for enabling them to input text to a website, email, social media post or private message. Bugs and usability issues persist, especially when websites introduce new features not yet optimised for use with assistive technology. I personally witnessed something of these issues when reading posts by a Facebook friend with blepharospasm (a medical condition that caused her eyelids to stay shut): the content was gibberish, despite the fact that the individual in question was a published author of literacy fiction.
A (blind) former Facebook employee argues that despite the engineering issues involved, seeking to resolve bugs and making social media platforms as accessible as possible is a civil rights issue.
4. Audio products: web design for hearing impaired users
Obvious adaptations for hearing impaired or deaf users are the provision of captions, subtitles or transcripts for audio material such as videos. Much like other adaptations mentioned above, captions, subtitles and transcripts can also be helpful for non-hearing impaired users, so providing such information is a win-win situation in terms of raising accessibility, user engagement (and also 'crawlability' by search engines).
A less obvious point, again by hobo-web.co.uk, suggests that using straight-forward language will help some sign-language users within the hearing impaired community:
'Many deaf or hard of hearing people – particularly if they are sign-language users – do not have highly developed reading skills. Sign language is a different language from standard written English. Some people who use sign language, therefore, have a limited reading vocabulary. The use of simple, clear language will help to ensure that deaf or hard of hearing people can access the information on your web pages.'
Obscene Publications Act
This is a 1959 UK law which aims to protect people who are likely to be corrupted by material. Examples of written works which have attracted the attention of similar laws include the 1920s novel Lady Chatterly’s Lover for its depiction of extra-martial relations and perceived obscenity, and Oscar Wilde's letters to 'Bosie' (Lord Alfred Douglas) in the late 19th century, which were used as evidence to convict him of gross indecency at a time long before the legalisation of homosexuality.
An 1895 letter from Oscar Wilde to his lover, Bosie
The 1959 act also covers TV material likely to deprave – not only sexual material but also content showing drug abuse and violent acts. Regulatory body Ofcom polices broadcasting, for example, through the use of the watershed, but online streaming is different in that it can be watched at any time. Due to this, streaming is often protected by warnings and age ratings, and parents can control what their children see using parental controls.
The Obscene Publications Acts is still a law in the UK, however it holds less strength nowadays, as what is considered an obscene publication is very open to interpretation and societal mores have become more relaxed. Material likely to be directly or indirectly harmful to children is more likely to be policed by more recent laws such as the Child Protection Act.
Computer Misuse Act 1990
This act covers hacking, the modification or deletion of data, chatroom abuse, viruses and phishing emails.
Penalties for contravening the Computer Misuse Act range from short-term prison sentences and a fine (< £5,000) to 10 years in prison and an unlimited fine.
The 1990 Act has been through several amendments, however cyber intelligence specialist Peter Yapp argues that it is no longer fit-for-purpose. In a nutshell, the question that Yapp poses is: should organisations under cyber attack be permitted to defend themselves with a counter-hack? Yapp would seem to be following a logical line of thought: UK legislation currently offers some protection for individuals who use reasonable force for the purposes of self-defence, defence of another or defence of property.
Like many areas in interactive media where emerging technologies present novel issues, legislation is reactive. Notwithstanding this, it remains the responsibility of the interactive media industries to stay on the right side of the law as it currently stands.
Contracts
Contracts are legal documents to protect both parties that state what has been agreed to and what the terms of engagement are. Examples of contracts are employment contracts and freelance contracts.
Common stipulations in employment contracts include penalties for not meeting deadlines; non-disclosure agreements and agreements not to work with competitors.
Freelance contracts are often negotiable, and freelancers may ask (amongst other things): to retain copyright of their work; to be allowed to publish the work on their website (with a view to getting more work) and/or to receive fees for re-starting a job that’s gone cold.
Ethical Issues
For creators of interactive media, 'ethical issues' are more about moral considerations than about avoiding being taken to court.
Relationship with client
Not only is this an ethical issue, but it also makes good business sense to maintain certain standards when interacting with clients by, for example, not emailing someone out of office hours, being respectful, professional and maintaining appropriate boundaries (i.e. not having personal relationships with clients).
Respectful and professional behaviour include using appropriate language when communicating with clients and keeping business secrets. Without these behaviours, there is a risk not only of alienating the client or leaving a bad taste in their mouth, but also of losing the client.
Blasphemy
Blasphemy, once punishable by death in the UK, is still a serious crime in other countries, and in Western countries with legal systems that allow freedom of speech and expression, public acts of blasphemy can sadly trigger acts of extremist terrorism. For example, French weekly magazine Charlie Hebdo published a cover with a degrading image of the Prophet Mohammed which led to terrible violence in 2015.
In contrast to this, a 2017 interview given by Stephen Fry in Ireland prompted someone to attempt to bring a court case against him for hate speech/blasphemy, but the investigation was subsequently dismissed as there was insufficient outcry from the Irish public.
Often, when poor taste in advertising and visual media triggers accusations of transgressing norms of public decency or of offending religious sensibilities, it has the effect of raising brand and/or product awareness through providing additional publicity (and consequently, sales revenue) for the company concerned. For instance, in 2020, Greggs the baker replaced the baby Jesus Christ with a half-eaten sausage roll in a mock-up of the holy nativity scene. On the back of complaints made via social media channels, they received many column inches and much screen real estate was given over to images of their sausage roll.
In general, when working for a public body (for instance, a school, college or governmental department), it is safest to avoid disrespecting someone's religion as blasphemy could be perceived as unlawful discrimination and pursued in a court of law, with negative consequences for both the individual and the organisation concerned.
Representation
Examples of poor representation abound in the creative media industries, from domination of the Oscars by white people to textbook writers tokenistically including one person of colour in a group image.
In 2009, my own Nigerian students protested the photograph used to illustrate an IELTS (academic English) textbook task on the causes and effects of poverty: why was it always a black African child against a cracked, baked mud backdrop? Did not poverty exist on other continents? They were right: representation in that textbook and the insinuations made to the reader could have been very different had the editors included a variety of images to accompany the article, perhaps showing poor children of different skin colours and ethnicities.
Cosmetics brand Dove has produced media that falls on both sides of the good/bad representation line: in 2011, they were criticised for an advert in which a black woman appeared to turn white after using their body wash, and again in 2017 the Dove marketing team chose to depict a black woman turning white. On the other hand, since 2004, the Real Beauty campaign has featured images celebrating women from different backgrounds and of different sizes - a marketing move seemingly aimed at embracing tenets of inclusivity.
To conclude, without balanced representation of different minorities, audiences, clients, students can feel angry. Members of minority communities who may feel alienated and under-represented might leave a website, choose not to watch a film or disengage from whatever interactive media offering is in front of them. Balanced, inclusive representation is not only positive from an ethical standpoint - it also makes good business sense.
Comments
Post a Comment