Social Media and the Law
Last year Heidi and I attended a seminar on the legal risks of social media, hosted by Mr. Peter Karcher and Ms Belinda Hapgood of ClarkeKann Lawyers. Whilst there was a lot of discussion around the ownership of Twitter accounts and the rights and wrongs of Facebook posts, the most important point for all attendees was that the existence of a comprehensive social media policy was critical for any organisation, especially when it came to matters of employee discipline and dismissal.
Legal Risks of Social Media Generally
The law is no different in comparison to other forms of communication, but there are increased risks from the nature of this particular form of media, including:
- its immediacy and lack of “filters”;
- the potential for re-publication and permanence of the material – it is always “somewhere” in cyberspace;
- everyone can be a publisher in the eyes of the law; and
- there are misconceptions that social media platforms are “private” or can be used anonymously without consequences.
Have a social media policy for your journalists, employees and contractors. Things to think about when drafting a social media policy, especially for journalists, include:
- be positive and encouraging about social media, but aim to educate journalists about the importance of your brand, and how their actions on social media can impact the brand;
- differentiate between personal and “official” accounts;
- set procedures for establishment and use of “official” accounts, including any editorial checks necessary;
- tell people what you expect of personal accounts, and any disclaimers or clarifications required;
- confidentiality; and
- legal aspects, including setting out a process and potential consequences, in the event of a breach.
Publishers may be held liable under a range of laws, including defamation, misleading and deceptive conduct, and advertising standards, for third-party content posted to a site which they control, including corporate Facebook pages.
Your risk profile increases once you are on notice of potentially infringing material. This doesn’t mean automatically take it down, but deal with it quickly and carefully. If in doubt, get professional advice.
Moderate blogs, forums and social media platforms you control. The level of required moderation will depend on the scale and type of your business.
Make sure you have the necessary licenses and clearances for material you post yourself.
Register your brand and your mastheads as trade marks to prevent unauthorised use on social media platforms and the Internet generally.
Social Media and Employees
The existence of a comprehensive policy is critical when attempting to discipline, demote or terminate the employment of an employee who has abused a social media platform to the detriment of the employer. In the absence of a policy and explicit training on the terms of that policy, the employer is at risk of a finding of unfair or unlawful dismissal.
Your social media policy for employees should be general enough to cover the evolving nature of the technology. It is important to frame the policy in terms of concepts rather than particular types of behaviour.
Good social media policies:
- Make clear that use of these platforms is rarely private and that if usage impacts on work matters, it may result in disciplinary actions;
- Remind employees of the importance of continuing compliance with other relevant policies – e.g. codes of conduct or anti-bullying/harassment policies in the usage of social media platforms; continuing workplace health and safety obligations;
- Warn employees about unintended consequences of their usage of the technology – e.g. tagging revealing a geographic location or existence of a confidential source;
- Make clear that the employer will not tolerate conduct that is offensive, illegal, defamatory or abusive;
- Reflect the current law which changes relatively regularly – review and update your policy as necessary but usually at least every year.
Once the policy is created, employees should be trained on it regularly and their attendance at such training recorded so that the employer can show reasonable steps were taken to make employees aware of their obligations and the consequences of failing to comply with the policy.
For more information, please contact:
Peter Karcher // Corporate & Commercial Partner
T 61 2 8235 1218
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