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Social Media and the Law

Social media facilitates global communication by providing its users with a playground of online platforms to create and exchange user-generated content.

With this privilege of communication comes responsibility, as laws have continued to grow and develop to regulate the social media phenomenon.  There are no uniform social media laws for the global community, the domestic laws of each country still apply to the users of social media.

Whether you intend to actively participate on a personal level, or are planning to incorporate social media into your business marketing mix, you need to be wary of the legal and social risks that generally apply to all social media channels. The following are some examples:

Defamation and Injurious falsehood: Defamation is essentially the act of damaging the reputation of someone else and lowering them in the eyes of the public. Only an individual can be defamed, a company cannot. Injurious falsehood is essentially a sub-category of defamation and can apply to a company, and occurs when a person makes malicious and false statements about a third party which damages their commercial and economic interests (such as causing a loss of profit).

An Example Case: Headlined by the Sydney Morning Herald as “The tweet that cost $105,000” the Mickle v Farley [2013] NSWDC 295 case made Australian legal history as the first Twitter defamation battle to go to a full trial. In this case a former high school student was ordered to pay $105,000.00 in damages to a teacher at a local school in Orange NSW, because of defamatory content he had written about her on the social media platform, Twitter.

Privacy, confidential information and security: exposing restricted information has never been so easy given our constant access to social media.  This can be as simple as taking a picture and uploading the content or discussing workplace practices on a public forum. Always remain cautious and think before posting information that might be protected for privacy, security or confidentiality reasons.

Discrimination and offensive content: many users of social media publish content from the protection of their living rooms, while at the pub or surrounded by friends without thinking of the global audience their post will be accessible to. Be conscious of what you publish to ensure it isn’t discriminatory or offensive to the wider public.

Employment: Employers have been known to scan social media pages to review prospective employees. There are many loop holes to profile security settings due to ‘friends’ and associated connections.  Also online servers don’t always delete the uploaded content immediately on request. Further, employee violations of company social media policies are increasingly being used as grounds for dismissal in some workplaces.

Intellectual Property Law: Copyright infringement, exposure of Trade Secrets and unauthorised use of Trade Marks can readily occur through cut, paste and publish methods used on social media platforms without appropriately acknowledging the source or passing-off someone else’s content as your own. Exceptions can apply such as for the purpose of satire, news reporting and education purposes, but you should still credit the initial creator or source.

Consumer Laws:  If you are a business engaging in trade and commerce, consumer laws extend to online content. This means misleading and deceptive conduct can easily occur on social media. It is your responsibility to monitor the content published on your social media websites to ensure your customers aren’t being misled or deceived about your goods or services. This is inclusive of the content you publish and what others publish on your page, if you suspect it is misleading or deceptive content, remove it from your page immediately.

An Example Case

In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2001] FCA 74 the Federal Court held that one does not need to be the original author of the publications. Allergy Pathway was found liable for misleading and deceptive testimonials posted by their clients, because the company was aware of the statements but failed to remove them from their page.

Key ways to prevent legal issues on social media:

  • DONT claim published work as your own, if it isn’t your creation.
  • DON’T publish content when you are angry or under the influence of alcohol.
  • DON’T get into arguments with your online customers.
  • DON’T publish information that is misleading or deceptive.
  • DO monitor your online presence to eradicate potential risks.
  • DO promptly remove inappropriate or discriminatory material.
  • DO have a social media policy if you are a business.
  • DO familiarise yourself with your workplace social media policy and your obligations as an employee.

 

If you have a question about this article or Social Media and the Law contact our Commercial Team now:

P 02 6215 9100

E mark.north@chamberlains.com.au

 

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