By adaptive - July 4th, 2012

[I]t’s sometimes suggested that the social media environment is a bit “Wild West”, with businesses trying to reap the benefits, but without sufficient awareness of the attendant regulations a...

It’s sometimes suggested that the social media environment is a bit “Wild West”, with businesses trying to reap the benefits, but without sufficient awareness of the attendant regulations and responsibilities. So, what is the regulatory framework surrounding social media, and how can companies develop strategies that minimise the legal risks?

Here are a couple of scenarios. Firstly: you are the managing director of Bloggs Widgets, and you take on a new sales manager, a Mr Smith. A couple of months later, Smith starts using a newly created Twitter account to post tweets about your main competitor, including veiled suggestions of financial problems, safety issues that have been ignored, and forthcoming claims for damages. Your competitor loses substantial orders, and has to invest time and money in dealing with disgruntled suppliers, customers and the press.

Secondly: you have a discussion forum on your website, and one of your customers posts this: “Great service and great prices from Bloggs. Not like some other widget makers I could name, who are crooks and rip-off merchants. No names but stay away from Swindon. LOL.” There is only one widget maker in Swindon, so everyone gets the meaning. Again, your competitor loses sales and its reputation is damaged.

In both of these cases, you and your business are at risk of serious and potentially expensive legal action, if your competitor decides to complain. So how can you guard against being caught out by potential social media problems involving defamation, breaches of confidentiality, intellectual property violations, harassment, bullying and the rest?

Now we are all publishers

With Facebook, Twitter, blogs, message boards, and other social media, everyone can be a publisher. However, not everyone knows the rules, and in recent years the legal system has had to deal with a growing number of both civil and criminal cases involving posts on social media sites – including cases similar to the two scenarios outlined above.

Daniel Eilon, Consultant Solicitor at specialist firm New Media Law LLP This may give the impression that the whole thing is a bit like the lawless Wild West – unregulated and unfettered – but as Daniel Eilon, Consultant Solicitor at specialist firm New Media Law LLP asserts, “there’s plenty of law that applies. Social media platforms invite users to generate and post content which may be controversial and interesting, but equally may be unlawful. If employees surrender to the temptation to use social media to attack competitors the results could prove counter-productive and costly.”

There seem to be two main issues: the easy availability of online posting, and the sheer speed with which information is disseminated. Quoted on the BBC website, Barrister Korieh Duodu said much of what appears online is written by people who do not check facts in the way that media organisations do. And he pointed out that “Such is the speed at which information travels through social networks that one unchecked comment can spread into the mainstream media within minutes.”

Malcolm Thomas, Malcolm Thomas, Civil Litigation Solicitor and social media specialis, Varley HibbsAs Malcolm Thomas, Civil Litigation Solicitor and social media specialist at West Midlands firm Varley Hibbs points out, the resultant business risks attached to social media are considerable: “You and your employees will be making open, public statements on blogs, Facebook, Twitter and so on, and you may be held liable … if those statements breach local or international laws. For example, they could be defamatory, infringe someone’s intellectual property rights, discriminate against a third party, or disclose information held under the Data Protection Act. And that’s to say nothing of other regulations to do with advertising, competition laws, Health and Safety, and so on.” And even if no laws are broken, statements on social media can still be embarrassing or damage corporate reputations.

New Media Law’s Daniel Eilon says there a number of core considerations to watch out for, including aforementioned Data Protection Act, infringements of intellectual property rights (both yours and other people’s) and monitoring of online marketing by The Advertising Standards Authority.

The moderation paradox

One interesting issue that Daniel Eilon raises is what he calls the moderation paradox: “The more tightly you control what happens on a message board or forum, the more you accept responsibility for the comments. Complainants should always be provided with a way of reporting illegal or abusive comments, and you should respond quickly to ‘take-down’ notices. However, you should also make it clear to users that you are not monitoring every contribution.”

Malcolm Thomas of Varley Hibbs says it’s vitally important for businesses to take protective measures to cover the main potential risks:

  • A well-drafted social media policy between employer and employee will give some protection by expressly making breaches of the policy disciplinary offences.

  • Blogs should include terms and conditions for use by third parties, with a provision for disclosure of the writer’s details to an offended third party, and giving terms for removal of offending material.

  • A range of other notices and disclaimers is advisable, including:
    • Data Protection Privacy Policy, including opt-in consents

    • Disclaimer requiring blog users to take specific advice rather than rely on the general advice in the blog

    • Warranties and liability limitations about views expressed, reliability and use of blog information etc

    • Disclaimers of liability for viruses

    • Copyright protection notices

    • Statements of jurisdiction and target audience

    • Statement about who in the business has the authority to enter into contracts

Daniel Eilon of New Media Law agrees, saying that it pays to take some sensible precautions:

  • Make sure users who post material on your site or blog sign up to terms of use that protect your interests

  • Post your privacy policy prominently and make sure staff comply with its provisions

  • Train staff in the acceptable use of social media

  • Keep an eye on your online reputation using Google alerts or a media monitoring specialist

  • Seek legal advice as soon as problems arise which threaten your brand, goodwill, confidentiality or intellectual property rights

 “Finally,” he says, “keep learning about this fascinating and fast-developing area of the media and the law.”

As with many other areas of commercial life, it is important to get professional advice on the legal aspects of social media: policies, notices and disclaimers should be drawn up by specialist professionals. This is no place for the gifted amateur.

This article is for general guidance only on the legal issues surrounding social media. It is not a full statement of the issues, and readers should take specialist legal and professional advice specific to their business, and on issues that specifically concern them.

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