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Top tips to minimising your risk with social media

Though many Australian organisations participate in social media and online communications, not many clearly understand the legal risks and responsibilities they are subject to before they get started or as they grow and manage their online communities. It is best to first understand the legal risks, and how it could affect your organisation, so you can actively minimise or manage these risks.

This includes any material online which draws the attention of the public to promote a product, service, person, organisation and which is:

  • Under the reasonable control of the brand owner;
  • Has an Australian-customer link (i.e. if any or all of the customers of the product, service etc are physically present in Australia);
  • Is communicated via a site or digital platform, or part thereof, which is under the control of an Australian company is at risk.

For instance, did you know that you can be held responsible for posts or public comments made by others on your social media pages which are false or likely to mislead or deceive consumer? In 2011, a court case concluded that a company accepted responsibility for fan posts and testimonials on its social media pages when it knew about them and decided not to remove them.

In short, don’t make statements on your social media pages that you wouldn’t make in any other type of advertising. If you’re unsure about what you can or can’t say, seek legal advice. Individuals and companies participating in social networking sites without appropriate legal protection in the form of contracts and policies risk:

  • brand dilution
  • their reputation being tarnished or destroyed
  • potential loss of business

Below we have listed nine tips to minimising your social media risk:

  1. Monitor your social media pages for unsubstantiated or inappropriate content. Take responsibility for the pages, or nominate staff members to monitor and set out a schedule for how often they do it. The ACCC suggests large businesses should have 24 hours to remove comments, but will give more time to smaller businesses, understanding that they have more limited resources.
  2. Correct misleading comments quickly. Have a system in place that details how potentially misleading comments are dealt with so you can do so with speed. Nominate key decision-makers and make sure they are available on a roster basis.
  3. Access specialist social media training for yourself and your team on what legal liabilities apply now, and make sure you have mechanisms in place to remain updated when new rulings or precedents emerge, which they will.
  4. Create a social media policy. Everyone in your organisation must know the purpose of your social media pages and how you expect them to use it for professional and personal reasons.
  5. Integrate appropriate legal terms and conditions in to your social media pages. Try to avoid seeking legal advice when it is too late, lay the foundations of a ‘legal’ social media presence from the start.
  6. To avoid copyright infringements set clear rules around not using any form of content unless the content was entirely created by the individual or is being used with the express permission of the content owner. This must apply to all elements in the content including for example any music that is playing as background to audio-visual content.
  7. Don’t upload content that contains images of third parties unless you have permission from the person/s appearing or would otherwise expect due to the relationship that their image would be shared in social media. Featuring a disclaimer on the registration page of events, or in the signage of events for instance that you may take photos is a good idea.
  8. Have very clear upfront ‘opt-in’ consents and disclosures around future electronic and physical communication with the individual if the intent of the campaign is to build or expand a database of individuals – this will ensure best practice Spam Act and Privacy Act compliance.
  9. Consider engaging the services of a social media lawyer. There is an emergence of lawyers and other business professionals offering consultancy and services in the area of social media law to help businesses navigate the legal risks related to the use of social media, be it by employees (both during and after work hours), as well as risks posed by third parties.  One of the biggest values of engaging a social media law specialist is that they should be actively seeking to keep across this emerging, and rapidly changing area of law, so you don’t have to.

Social media can be a powerful marketing tool, but make sure that you are aware of the law and the risks…