Twitter, Facebook, LinkedIn, Messenger, Blogs, Tumbler, Digg-it, YouTube all form part of a huge plethora of online networking applications which are all the rage at the moment. Many of us have accounts with one or more of these sites, but not many of us are clued up to some of the legal implications surrounding the use of these applications. What makes it even more complex, is that there is currently no separate social media law governing these applications.
Most of the litigation cases, both here in the UK and in the Unites States, have centered around defamation, libel, invasion of privacy, copyright infringement, music piracy and incitement to violence. Consequently, the outcome of such cases have been determined by the application of the law that currently governs each area i.e. Defamation, Intellectual Property Rights Law, Data Protection, and Privacy Regulations. One can only speculate that as the use of social network for business purposes proliferates, we will see far more causes for action here in the UK and elsewhere and subsequently more clarity on the law surrounding these issues.
Traditionally, networking mediums such as Messenger, facebook, and YouTube were used by individuals for personal use, for example you would have people linking up via webcam attached to their computers and having ‘face to face’ conversations with friends and families around the world. However, there has been an increase in recent years in the number of businesses that are using social media as a marketing and branding tool, and herein lies the problems. Although there has been this increase in usage, businesses are not treating online media as the asset that it really is and consequently, they are not making provisions for safeguarding these assets and or minimising the risks attached to their use.
So, what are some of the pitfalls of online social networking from a business context and how can businesses protect their valuable assets?
The typical scenario is where an employee, with or without permission, sets up an online account (such as Facebook, Twitter, YouTube etc.,) on behalf of the employer. Inevitably, issues arise around ownership of the account, the followers and any online content including tweets, status updates, images, external links etc.
My first thought would be that much would depend on the employer’s social media policy if there is one, and on the terms of the employment that govern the relationship between the employer and the employee.
Secondly, with reference to the copyright laws as they exist in the UK, we know that copyright is usually vested in the person who created the piece of work. However, different rules will apply when the work was created in the course of employment, where copyright will be held to belong to the employer, unless the employee or contractor’s working agreement specifies otherwise.
The ongoing case of Phone Dog Media v Noah Kravitz (United States) should go some way towards clarifying some of these cloudy issues and might even set a precedent for future litigation cases over ownership of social media accounts. Here, the employee Noah Kravitz, is being sued by the employer Phone Dog Media, for keeping Twitter followers that he attracted while working for Phone Dog Media , after he had resigned from the company.
Falling foul of Defamation Law
This is another area that contains some thorny issues, which can be further clouded by that blurred line between a person’s duty as an employee and his rights as an individual. Defamation law, has historically balanced one person’s right to freedom of speech with another’s right to not have his or her reputation unfairly attacked. However, recent surveys have shown that a vast majority of people using social networking sites are unaware of their responsibilities and consequently the legal implications of their online exploits.
From a business point of view, tribunal cases in the UK have centred around employees wittingly or unwittingly posting damaging or libellous comments on social media networks about their employer, other members of staff or the employer’s clients. The basic rules of publishing are very simple:
- verify facts;
- don’t misrepresent information.
- don’t post anything that would be deemed offensive to readers;
Breaching Data Protection and Privacy Regulations
Issues can and do arise around the handling of data and in particular, the disclosure of potential sensitive personal data e.g. an employee’s salary, political or religious beliefs, sexual orientation or even disciplinary records. Consideration also has to be given to disclosure of sensitive commercial data about the company’s products or operations. Steps must be taken to ensure that employees are made aware of their responsibilities with regard to these issues and the consequences of their actions if they get it wrong.
There are well documented cases around breaches of privacy regulations usually involving Celebrities. Two very notable cases involved a UK celebrity and his attempt to use a super-injunction to block reports of his alleged affair and an earlier case involving renowned American actress and singer Barbara Streisand’s unsuccessful attempt to sue a photographer and a media company. She wanted them to remove pictures of her mansion that were included in a publicly available collection on their website on the grounds of invasion of privacy. As a result of Streisand bringing the action to court, 420,000 more people visited the site than otherwise would have done were it not for the court action. This case, somewhat of a precedent, actually resulted in the now commonly used term “The Streisand effect” which in layman’s language means that attempts to restrict accessibility of information or content will inadvertently generate further publicity.
So, how can businesses protect themselves from the perils of Social Media networking?
As the use of Social Media becomes an integral part of the marketing and branding strategy of businesses, so it becomes imperative that businesses develop robust Social Media strategies. A good social media strategy should:
- inform the businesses’ social media policy;
- be practical and inclusive;
- be aligned to existing relevant HR Policies governing employee’s conduct.
A policy is only effective however, if employees are made aware of its existence and are thoroughly briefed on its application.
Below are some of the issues that should be included in any social media policy:
- The employer’s attitude to social media;
- Guidelines on communicating with the employer’s stakeholders through online networks;
- The importance of observing confidentiality in line with Data Protection Principles;
- The importance of observing privacy in line with the Privacy Regulations;
- The employer’s position with regards to defamatory or libellous comments posted online about the employer, or its stakeholders;
- Unequivocal warnings about the sanctions that would be meted out, including disciplinary action and even termination of employment;
- A statement as to whether or not the employer will be monitoring social networking sites.
Whilst it is almost impossible to police social networking sites and to keep track of employee’s online exploits, having a robust policy will ensure that all parties will enjoy the benefits of online social networking. Employers will be confident that they are managing the associated risks and employees will enjoy the freedom of online networking within pre-defined boundaries.
Some Useful links on this topic
Thank you for reading this Blog Post, I hope you found it useful!
© Cay Moore 2012 All Rights Reserved
This is the full text of a post that was first published in Ezine Articles http://ezinearticles.com/?The-Pitfalls-of-Social-Media&id=6813853
Cay Moore is the owner of Cay Moore Associates, a dynamic business providing professional administrative and events management services.