Capitalising on social media: Avoiding the legal pitfalls

The level of content generated is ever-increasing; every minute sees 293,000 statuses updated on Facebook and 546,000 tweets on Twitter. Social media opens the door to new opportunities for customer engagement, marketing and recruitment. However, these opportunities also bring legal risks and uncertainties.

At a recent event we held in conjunction with the Chartered Institute of Marketing, we addressed the legal issues arising out of the day-to-day use of social media in business. Below, we examine some of the legal issues to be aware of when using social media for your business.

User-generated content

The operator of a social media platform is ultimately responsible for its content. While content generated by a business remains within the business’ control, if customers are allowed to submit and post their own content to the platform then that control is lost. Ensure guidelines or terms are in place to mitigate any risks and deal promptly with any complaints made to reduce the risk of the business being liable for anything contained in the user-generated content.

Promotions

Running a promotion via a social media platform is one of the best ways to attract customers and retain interest in your business. However, be aware that each platform has its own rules which must be complied with when running a promotion. These can be confusing, but ignoring them can lead to account suspension and reputational damage to a brand.

Content

While operating a social media channel, it is sensible to be aware of external communications referring to your business or products. Infringements of rights, or unfair or untrue comments can have a damaging impact. With that in mind, ensure that any references to competitors are compliant with the law, particularly in any comparative advertising.

Recruitment

Social media provides excellent opportunities for advertising jobs and recruiting. There are risks, however, associated with screening applicants via social media and discriminating against them based on something that was noticed on the applicant’s profile and online footprint. 

Ownership

Management of social media accounts (in particular LinkedIn contact lists) can be an issue that arises when an employee leaves. Future-proof key accounts by ensuring that more than one individual has log in information, that passwords are stored centrally and any contacts are stored on a separate internal database. 

Data protection

Be aware of the obligations under the Data Protection Act 1998. Does the business comply with the privacy policies relevant both to the social media platform and how does this interact with the business’ own privacy policy?

Social media policy

Having a social media policy in place for employees can greatly assist in preventing disagreements before they even begin! It is a useful place to set out expectations in relation to employees’ use of their personal social media accounts while at work and detail permitted online behaviour, in particular when dealing with customers or referring to the business; and also to provide guidance and rules for the business use of social media.

Risk mitigation

There are numerous practical steps that can be taken to mitigate the legal risks in the social media sphere. These include: being aware of the pitfalls and how you may infringe (for example) copyright or trademarks, and what constitutes defamation; having clear terms and conditions on your website governing user-generated content; putting in place “take down” procedures to put into action if you are notified of any infringing content on your website, to ensure that any claim is considered, responded to and appropriate action is taken; and familiarising yourself with the reporting functions of the various social media platforms to enable you to quickly report any infringements of your own rights by third parties.

The above points touch just some of the legal issues that social media presents, which are extensive and cover a range of different areas. A regular review of social media use, documenting expectations and continued monitoring all form part of an effective social media program that will mitigate the legal risks to a business and allow it to leverage the benefits social media represents

Wriiten by Beverley Flynn (Commercial Partner and Head of Data Protection) and Charlotte Tillett (Intellectual Property lawyer) at law firm Stevens & Bolton LLP.

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