Minimising the legal risks of social media

There are steps brands and facebook companies can take to protect themselves from the legal implications of social media use says Alison Eveleigh, in a piece that first appeared in Encore

Poor Qantas. The airline has suffered many a social media mishap. Back in 2011 its Twitter hashtag #qantasluxury was hijacked by unhappy customers who delivered an unprecedented number of cuttingly sarcastic and highly critical responses. In 2012 the airline battled to remove a snarky parody PR account from Twitter. The most recent incident occurred in July when a hardcore pornographic image was displayed for about seven hours on the Qantas Facebook page, much to the shock of an eight-year-old boy and his father who visited the site.

Of course Qantas is only one of many brands to suffer at the hands of social media. Australia’s Next Top Model recently had its promotional hashtag #antmselfie hijacked by protest group Collective Shout, who claimed the competition was superficial and encouraged sexualised behaviour. The group’s actions drew attention to photo entries from girls as young as nine.

So what can you do to minimise the legal risks and avoid being featured in one of the many online articles gleefully titled ‘Companies that have made huge social media mistakes’?

Australian law and guidelines

In Australia, social media moderation is a hotly contested subject. The Australian Competition and Consumer Commission (ACCC) and a number of industry bodies have released somewhat conflicting guidelines, as summarised below.

The ACCC has made it clear that it considers content on social media sites to be advertising and/or marketing communications. Importantly, this means competition law applies to such content.

Accordingly, brands have a responsibility to ensure content on their social media pages is accurate, irrespective of who put it there. Brands will be held responsible for user posts or public comments made on social media pages which are false, misleading or deceptive if the brand knows about them and decides not to remove them.

In regards to moderation generally, the ACCC says the amount of time a company needs to spend monitoring its social media pages depends on the size of the company and the number of fans or followers it has.

The Australian Association of National Advertisers (AANA) has stated that its self-regulatory codes apply equally to digital and traditional media. This means that the ASB will consider and adjudicate complaints about user generated comments under the AANA codes.

For brands that are interacting and participating actively on a digital platform, the AANA-best practice guideline ‘Responsible marketing communications in the digital space’ recommends brands moderate at least once every business day. Brands should also moderate immediately after posting or engaging online and for at least two hours following a post.

Unlike the ACCC and the AANA, the Interactive Advertising Bureau (IAB) believes user comments on social media platforms do not constitute advertising. However, user comments can be converted into promotional statements through an organisation’s direct endorsement or expression of agreement. Further, the risk of an organisation becoming responsible for a user comment on its social media platforms increases once it has been made aware of the comment and it has had the opportunity to review it and take appropriate action.

In its new publication ‘Best practice for user comment moderation’, the IAB suggests companies moderate comments to the extent their resources allow. At a minimum, this should involve reviewing and moderating recently published comments at the same time as posting a new comment. The IAB notes that brands should increase their moderation if they are engaging in online interaction that is provocative, and designed to illicit controversial responses.

So what should you do?

When it comes to social media moderation, a common sense approach is best. Brands should moderate their pages regularly, taking into account the extent and activeness of their social media presence. For large international companies such as Qantas, this may mean consistent monitoring 24 hours, seven days a week. For smaller brands, this may be once a business day. All brands should remove posts that are, or are likely to be, false, misleading or deceptive, defamatory, offensive or which breach intellectual property laws as soon as the brand becomes aware of them.

Most importantly, all companies should have in place:

  • a social media policy which sets out employer expectations around professional and private use of social media;
  • community manager guidelines, which set out clear company policies and practices around moderation and the removal of offensive or illegal content;
  • house rules/community guidelines, which set out the standards expected from community users; and
  • a crisis management plan, in case something does go amiss.

Of course, in an ideal world you will never have to use that crisis plan.

Legal Eye is a monthly Encore column from Von Muenster Solicitors and Attorneys who specialise in the media, marketing and entertainment industries.


Encore issue 32

This feature first appeared in EncoreDownload it now on iPad, iPhone and Android tablet devices.


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