GUIDE TO SOCIAL MEDIA RISKS AND OPPORTUNITIES FOR BUSINESS Contents Introduction 1 Monitoring third-party social media sites for content 11 What do we mean by “social media”? 2 What are your options for defending yourself? 11 What do you need to consider? 2 Who’s liable for content? 11 Social media providers’ terms of use 2 Self-help mechanisms 11 The standard terms 3 Taking down fake sites 12 Creating and maintaining a social media presence 4 Defamation and corporations 12 Misleading and deceptive conduct 13 Planning and establishing a social media presence 4 Injurious falsehood 13 Establishing social media communication responsibility 4 Discrimination 13 Social media governance strategy 4 Criminal sanctions for trolling 13 Promotional activity and advertising issues 5 Practical steps and matters to consider 14 Continuous disclosure obligations and social media 5 Litigate or engage? 14 Discrimination 6 Developing a crisis management plan 14 Why you should monitor your own social media Assessing the risk in user-generated content sites for objectionable content 6 on third-party sites 15 What should you do when you find How will you respond? 15 objectionable content? 7 Steps to take to get material removed from Responding to negative comments 8 third-party sites 15 Should you remove content? Where is something “published”? 16 Recordkeeping 8 Obtaining social media content for use in litigation 16 Protecting your reputation from attacks Issuing subpoenas on social media opertors 16 by others on social media 9 Employee use of social media 17 What types of attacks could be made? 9 Employee social media policy 17 Trolling 9 Awareness training 17 Sock puppets 9 Branded feeds on Twitter and ownership of customer lists 17 Astroturfing 9 An employee’s LinkedIn profile 18 Intellectual property and confidentiality 10 Contractors 18 Copyright 10 Personal vs professional comment on social media 18 Trade marks 10 Policies and training: Stutsel v Linfox 18 Breach of confidential information 11 Connection with business: Fitzgerald v Escape Hair Design 18 Fake pages and fraudulent accounts 11 Threatening behavious and out of hours “posting”: O’Keefe v The Good Guys [2011] FWA 5311 19 Key contacts 20 Contents 2 Introduction Even if your business never has a social media presence, your employees, competitors and detractors all will (not to mention fraudsters), so you do need to understand how it works and have a social media policy of some sort. In our Guide to Social Media: Risks and Opportunities for Business, we set out the practical issues your business will need to consider, whether you’re creating your own social media account, or dealing with others’ use of their own. Introduction 31 What do we mean by “social media”? “Social media” covers a variety of What do you need to • Protecting your reputation from web-based or mobile technologies attacks by others on social media: that turn published communication into consider? This could occur through one interactive dialogue. A fundamental starting point for risk or more of the social media sites management with social media is the or on sites that the business does Publishing content through social media extensive limitation of liability that not own or has no control over. It is not the same as publishing content social media providers impose through could originate from an employee or to other web-based platforms, although the disclaimers contained in their terms group of employees or from people both involve the uploading of material of use. Those disclaimers of liability previously unknown to the company. to the internet. Traditional publication effectively eradicate legal avenues of • Employee use of social media: Use of in an online format is static; publishing redress against social media providers social media sites by employees will through social media commonly invites by third parties. encompass a number of issues such a response and can lead to conversation as using social media in work time, between the publisher and one or more There are two main issues to consider: potential workplace harassment readers – or just between readers. • do you have a broad risk via social media, the potential for There are a number of characteristics management strategy to cover a disclosing confidential information of publishing through social media that variety of uses of social media that or denigration of the employer. distinguish it from website-based affect the business, such as You’ll need to have policies that deal publication, including: reputation management and with all three of these categories. employee use of social media? • it allows the uploading and creation of user-generated content, often • what are your goals and strategy to Social media providers’ simply referred to as “UGC”; establish a social media presence, if terms of use any, for your business, and does your • online communities can be risk management strategy deal with Users enter into a contract with the established in which users the additional risks arising from your social media provider as soon as they participate in the publication; active participation? register to use the services of a social media platform. That means that even • providing for multiple interaction Relevant social media use (and misuse) though no money passes hands, their with an online conversation (for will generally fall into one of three use of the social networking site is example, facilitating the direct categories: governed by a contractual relationship interaction with other users or between the registered user and the contributors to the social media • Creating and maintaining a social social media provider. platform); and media presence: The company has to • content can be shared very quickly determine its own presence within The terms of the contract are recorded and widely. social media: which sites it chooses in the social media providers’ terms of to have an official presence on, who use, generally found on the relevant is responsible for keeping the website. The contract is governed content of that presence up to date largely by standard terms of use that (and, where applicable, ensuring that are published on the social media’s site no changes to the content have been “as is” – there is no opportunity to made by unauthorised third parties). negotiate those terms. What do we mean by “social media”? 42 For this reason it is important to become The standard terms familiar with those terms. Standard terms generally include the All social media platforms have terms granting of a licence by the registered of use that are relatively similar and user to the social media provider giving largely based on US law (as most of the it permission to host and publish the social media providers are US owned). material uploaded content (otherwise They generally cover: known as user-generated content) on the social networking site. • data security; However, ownership of the material is • the protection of minors; retained by the poster, not the social • privacy; media provider. The corollary of this is • defamation; that responsibility for the content of that material lies with the poster, not • consumer protection; and the host, which generally disclaims all • intellectual property rights. liability for user-generated content. However, it is important to note that The standard terms of use include a there is no contractual relationship comprehensive indemnity granted by between users of the same social the registered user to the social media media site. While this may seem provider for third-party claims resulting obvious, it is an important point as it from the registered user’s use of the means that a business with a social social media site. media presence that has a dispute with another user of the social media Most social media providers are based platform, for example, over intellectual in the US, in particular in California, and property infringement, would need to for this reason their standard terms resort to the usual laws and remedies include choice of law and dispute applicable between parties when a clauses that are governed by Californian dispute arises. law. What do we mean by “social media”? 53 Creating and maintaining a social media presence Social media is interactive and operates This includes registering business Social media governance strategy in a content-driven, information-sharing, names, brands and products or services. fast-paced environment. It is dangerous Most social media providers have The purpose of a good governance to assume that a business may establish separate terms of use that deal with strategy is to ensure the in-house legal a social media presence by publishing branded pages and may even have team or corporate communications information in the same manner as specific applications for the creation of team: posting information to the company’s branded pages. They will also regulate • implements and then maintains its website. Social media publication is by the use of their logos (for example, approach to social media; its nature interactive and can go viral in using the Facebook logo to link to a minutes, so social media sites must be branded Facebook page from a • retains control over the business’ carefully monitored. corporate website). publication on social media; and • monitors and responds appropriately The main issues you will need to Generally, once a user name has been to the interaction generated through consider are: registered by its proper owner, a social social media (ie. user generated media provider will not allow that same content). • who will be responsible for what you name to be reused by a different user or say? entity. There is no fee for registering a A governance strategy should cover: • what you can say – and how you can user name with social networking sites • what types of information can be say it; and like Facebook, Twitter and LinkedIn.