Being Social and Legal: The Legal Implications of Social Media

Date: 26/01/12

There is no escaping it. Social media reaches us all, and to many it is an integral part of the way we interact with the people around us, be it through social networks, blogs, content hosting sites or wikis. Some businesses are extremely effective at harnessing the power of social media and many others are quickly catching on. In such a fast-paced and rapidly developing arena it’s very easy to overlook business critical issues, especially given the perceived informal atmosphere of many social media channels. One such area which you neglect at your peril, is legal risk.

So what are some of the pertinent legal issues, as opposed to purely commercial risks and best practices, which could arise even in the most simple social media drive or campaign?

Please Keep Off the Astroturf – It Can Burn You

“Astroturfing” in a social media context involves posting positive comments and feedback to generate a buzz around your brand or product which has the appearance of being submitted by seemingly independent users. This could be in the form of blogs, tweets, wall posts etc. Taking such action can be incredibly tempting for a business, especially when looking to combat negative feedback. Many companies think, “how will I get caught?” but there are those out there on the internet who look out for such practices and the consequences can be incredibly damaging. The same considerations apply to submitting a false negative review for a competitor’s product or service.

Falsely representing yourself as a consumer in the promotion of a product is considered unfair under consumer protection regulations and may amount to a criminal offence.  The maximum penalty is two years imprisonment and an unlimited fine. Lack and impracticality of oversight and enforcement mean that prosecutions by the OFT are not particularly common, although a complainant could be referred to the Advertising Standards Agency.

By way of illustration, Groupon Korea was recently fined the equivalent of over $14,000 for posting fake reviews. Although such a fine is not particularly punitive to a company the size of Groupon, the reputational damage is, especially within the online community and marketplace you are looking to influence.

The best way to address any negative feedback is always directly. A good brand, combined with well engineered and directed campaign, should circumvent the desire to create fictitious feedback and buzz. Don’t forget that many users are extremely savvy and can spot astroturfing a mile away. The reputational impact of being caught astroturfing could be devastating.

Engaging Intellectually and Properly

There are a few key considerations to bear in mind in relation to IP when using social media.  This includes ensuring you are listening for any infringement of your own IP as well as making sure you don’t infringe someone else’s when engaging in social discussion.

Copyright in particular lends itself to online breach. Simply by copying and pasting a block of someone else’s text you could be infringing copyright, so you need to be careful when repeating something that someone else has said without permission. Best practice is always to ensure you have consent especially when using photographic images.

It is also important to listen out for infringement of your own IP to protect your brand and prevent others from behaving in a way that will be detrimental to it or from piggy backing on your success. In instances where confidential information is shared through social media, it is important to act quickly as the message can be passed around extremely quickly.

Professional advice is always important before ploughing-in and accusing another person of infringement (an ill advised threats action can back fire), but it is also important to avoid delay.

The Terms of Your Use

Most people never read them, but social media sites have terms of use. As a business looking to exploit social media you need to make sure you know exactly what you can and cannot do.  Do not assume that every site is the same, because they are not!

For example, social networking sites will have a stringent policy on exactly how you can use their brand to advertise your pages / profiles hosted on their sites. LinkedIn has extensive rules on the use of its logos linking to a LinkedIn page and how they must appear on any third party sites. Falling foul of such rules may lead to expulsion from sites.

The terms of use for social media sites are constantly under review and changing so it’s important to keep up to date.

The Politics

Do you have a social media policy?

Having such a policy will ensure that in using various social media channels you are mitigating your exposure to risk and establishing good and consistent practices.  This will complement and enhance your social media strategy.

A social media policy could be stand-alone or incorporated into the employee handbook, but either way employees need to be aware of and abide by it. This takes a degree of training and/or education.

It is important for such a policy to address the way in which sites are used, rules of engagement with social media users and the monitoring of channels and employees communications to name a few areas. Such a policy could go a long way to mitigate some of the risks already discussed in this article.

If you wish to discuss how the use of social media risks may impact upon you or your business please, contact one of our team.

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