Every business now uses social media, regardless of whether they target Baby Boomers, Millenials or Generation Z (yes, that’s now a thing….). With increased targeting and intricate data available, digital media is now post SEO/PPC as you once knew it, and entering a multichannel, holistic, consumer-focused spectrum. Businesses are increasingly reliant on organic and paid social media not only to advertise their products or services, but also to connect with customers and gain valuable insight.

The majority of people now recognise the reputational risks of social media. DC comic’s ‘Pakistanian’ blunder is my favourite social fail of 2016 so far, with this law firm idiot a close second. Reputational damage can be undone with time and effort – however, there are costly legal risks to consider too. Legal risks are not necessarily unique to digital, but when considering just how quickly and easily digital content can spread, it’s important that businesses put in proactive and reactive mitigation plans.

On nearly all social media platforms, material which is not compliant with set regulations may be removed by the network, and companies can be exposed to potential legal liability if they continue to flout these rules. What they don’t tell you is that having an account shut down for something trivial and avoidable can really hit your campaigns hard. You don’t want to be explaining to Mrs Client that the activity is down because Joe keeps posting risqué images to the company page…

We don’t want this to happen to you, despite how funny it may be in the moment. So, in this article we explore four potential legal risks that can occur when a business uses social media, including copyright infringement, misleading conduct, privacy and confidentiality, and finally defamation.

 

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1. Copyright infringement

Businesses may be led to think that because a photograph is made available on the internet, or is subject to a creative commons licence only, it is free for them to use with no questions asked.

As a social media exec I used to work with can attest to, this is not the case. A twitter post turned from a cute and informative piece to a £900 fine within 8 hours.

Whilst exceptions to copyright law may make material available for certain uses, including for personal use, usually these restrictions will not apply for commercial use. This includes use in an advertising or branding campaign. Clearances for all third party materials should be obtained where used as part of a organic or paid social media campaign, just as they would be for a print campaign.

Be somewhat sceptical of anything that claims to be ‘free’, and consider having the licence terms reviewed for conditions around attribution or restrictions on commercial use. There are some loop holes, but you need to be cautious.

The easiest way to get around this when looking for images is to use the advanced search tools in Google Images. Set the parameters to “commercial reuse” and you should be fine. Alternatively, just buy an image from Shutterstock and the like.

 

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2. Misleading Conduct

The BCAP is the UK governing body tasked with the responsibility of enforcing consumer protection laws on broadcast mediums. They have produced a framework that outlines 33 areas of prohibition on the use of “unfair or deceptive acts or practices” in sales methods, advertising claims, and marketing and promotional activities.

The key areas of this legislation ensures that ads are fair and non-misleading for consumers. This can be achieved with warnings and disclosures. However, for paid social media campaigns, this can often become convoluted process, with space limitations and accessibility considerations.

Consumer protection laws which prohibit businesses from making false, misleading and deceptive claims about their products or services are still applicable on social media. Claims made on social platforms should therefore be substantiated, as should any comparisons with competitors. If you work within the financial sector, then this is particularly important.

There is also the need for staff compliance and proper training for social interactions.

“Johnny just snap-chatted that the Queen is a bum! But he said it was his personal opinion, lolz”

This doesn’t cut it in the modern social environment. You need to have a comprehensive policy outlining acceptable social posting, and the ramifications for breaches of policy.

 

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3. Privacy and Confidentiality

Personal information is any information that can reasonably identify an individual. This can include their name, phone number or email address. Many companies, such as vision express and numerous PPI firms, have made a mess of this area so much so that channels like voice broadcast and SMS are now seen as ‘dirty’ mediums.

Nobody wants to receive spam calls, but what’s worse is when you get spam calls from companies that you have never even heard of. I am constantly bombarded with calls for car insurance, even though I haven’t owned a car… ever.

No business can legally collect, use, disclose or store such information without complying with privacy laws. Privacy regulation mandates the notification of individuals when personal information is being collected, and prevents disclosure of such information unless it is for certain purposes.

All business personnel who deal with personal information should receive training on these obligations, and a business should consider whether its privacy policy accurately discloses its practices with regard to collection, use and disclosure of personal data, even when it comes to social media.

Disclosure of information that was imparted in confidence can lead to serious legal issues. A particularly relevant example is the non-disclosure clause that is sometimes present in business-to-business contracts. This might outline that any public disclosure of the relationship between the businesses is not allowed, or is only allowed with the express permission of the other party. But will the excited sales team member be aware of those clauses, and refrain from posting on social media about landing a big deal with a well-known company?

 

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4. Defamation

The rule of thumb of this is don’t be a loudmouth and don’t just make stuff up. I don’t like Nigel Farage, but I can’t post online about the rumours he is the love child of Satan and Kermit the frog, as this would be defamation. Any information that is potentially misleading, or contains deceptive content that may injure a third party’s reputation, is classified as defamation.

There are certain exceptions, for instance if content is objectively true or an honest opinion, amongst other grounds, but this needs to be absolutely clear. Most companies do not have standing to sue others for defamation, and would need to rely on other causes of action, but a business can potentially defame an individual or small company.

The risk with social media is that defamation could potentially occur by ‘liking’ or ‘sharing’ a defamatory comment made by someone else, especially when this introduces a new and broader audience to the content. And we all know how quick and easy it is to hit these ubiquitous buttons. Just make sure you are prepared to defend your honest or factual opinion, or remove it when questioned.

What can a business do to mitigate risks?

There are a large number of ways that you and your company can avoid any legal issues in the digital landscape. You can create a company policy for digital communications and paid social media campaigns, introducing rules for users who upload content, monitor and moderate online.

In reality, the easiest way to remove these risks is to hire an expert marketing agency who can navigate the legal issues for you, and ensure you come out the other side with your reputation, your clients and your profits intact.

 

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