Social Media – Can you be sued?
Author: Tal Williams, Partner
31 October 2011
Social media is an emerging giant that some say will revolutionise marketing and business profiling. Many industry experts are telling us to get on board or be left behind. But as with all new technologies you must take steps to protect your brand, your image and yourself from litigation arising from misuse of this tool. In the United States cases have started to arise in which employers and staff are being subject to litigation. Our partner, Tal Williams has presented on this topic at national conferences and corporate webinars for a number of clients. This article looks at the initial legal issues and cases that are arising in this space.
You are aware of the growing trend for businesses and individuals to utilise social media for both business and personal reasons. This can range from Facebook and Twitter accounts and business profiling on Linkedin through to general e com and client interaction via email , smart phones and blogs. Electronic communications are the norm.
There can be little doubt that such communications can be of value to your business. But in allowing your employees to communicate in this way you are assuming that your employees are responsible and are aware of legal obligations that are imposed upon them when it comes to communicating with the world, and that the people to whom they are communicating will treat the information disseminated in a way that is proper and responsible. You are also assuming that your communications will not be accessed by those people who wish to damage your business or utilise information for the wrong reasons.
It is essential that you excerpt some control over your employees when it comes to dissemination of information about your workplace, your clients, your suppliers, or any other information relating to your business. These controls should be extended to ensure that employees are responsible for inappropriate comments made via social media networks outside of their core business hours.
Facebook and Twitter Litigation. Who is being sued?
Apart from serious reputational damage that could be done to your business, there has already been significant litigation in the United States surrounding comments made on Twitter and Facebook. You are probably aware that employees in the United States are being dismissed due to material appearing on their Facebook sites, but you may not know of the series of defamation cases that have occurred as a result of comments made in the social media networks. Significant amounts of money is being claimed from businesses in the United States relating to the improper conduct of their employees online. We believe it is only a matter of time before we see similar cases in Australia.
In recent times businesses in the United States and the UK have had to answer claims arising from social networking and electronic communications in relation to:
- Many defamation claims arising from publication of Twitter comments, and defamatory blogs (Courtney Love being one of the first to sue).
- Many employers have successfully relied upon Facebook photos and comments to justify dismissal from employment (but it should also be noted that many have not been successful as well – each matter will turn on its own facts).
- Misleading conduct (when incorrect and out of date observations were made on a website in relation to membership (and the quality of services offered by members) of a particular organisation).
- Misleading conduct (by way of “astroturfing”) whereby service suppliers are paying companies to create artificial ‘grass roots’ comments by having them add positive comments in twitter, on Facebook and in industry blogs in support of their particular services (where those blogs are simply not true).
- Criminal proceedings for ‘offensive’ use of social media (in the UK – but Australia has similar laws).
- A business was held responsible for failing to delete or respond to false and misleading testimonials on Facebook.
- A business has been prosecuted for allowing a racially discriminatory post to remain on its blog.
- There have been cases where a mere referral to a website that contained defamatory material has been sufficient grounds for legal action against the person referring the public to that website.
- Copyright infringement (and actions by the Copyright Agency Limited) for wrongful use of photo’s downloaded from the internet.
- In the US people have sued for defamation for being copied in on offensive emails (they claim that being cc’ed means that others who get the email might think that the recipient was the sort of person who may like what was in that material – and that was defamatory because the recipient did not like it and was not that sort of person.
- Claims have been made for not getting discounts on goods when the user had deep linked into old offers on websites.
- A person was sued for the comment “[name] does not know what she is doing…” on Facebook.
- A company was sued for using a picture of a foodstuff (a Kati Roll) that was taken by a competing Kati Roll business and using that picture as their profile picture on Facebook.
- An aged care facility had to deal with angry family members when a staff member (after hours and at home) posted some comments on one of the residents on Facebook.
- A business was forced to remove a photo taken at the company’s Annual General Meeting of a person who attended that meeting because the person did not want to be seen as being associated with the business. He alleged, to present the photo on line was therefore defamatory (the matter did not go to court – in our view the complainant would have lost if he did).
It should be noted that in some of these cases the poster of comments had tried to remain anonymous. The Courts in Australia are now granting orders enabling people to find out the real identity of people posting and then allowing action to be taken against those individuals.
How do you minimise your exposure?
The cases discussed are all the more concerning because of a continuing tendency for the younger people in the workforce to wrongfully believe that their electronic communications are private. They are not. For example, anything you post on Facebook can be used by Facebook under a license contained in their terms and conditions. Other tweets and information are certainly available to hackers but are also able to be used by people who quite properly receive or access the communication but who then improperly disseminate it for their own purposes. Nothing in the social media regime should be considered to be private.
The good news is, you are able to minimise your exposure to content that could be harmful for you and your business. This is done by having internal policies expressly dealing with when and how employees can utilise electronic communications and social networking. Also, by ensuring that the people who use your website or other electronic sites have agreed to be bound by terms which prevent them from taking inappropriate action will help to minimise your risk for exposure. It will also protect you or your business in case anyone would use the website or other electronic site inappropriate. And you should, in the right circumstances, actually ‘block’ inappropriate sites from being available for use at the workplace.
As with all dealings with the public, you should ensure that protections are in place so that you and your business cannot be not found liable for, and do not have to respond to litigation, issues arising out of improper use of social networking by your employees.
In that context it is surprising to know that, in 2009, 75% of Australian businesses did not know whether they had a social networking policy and less that 35% had any policy on on-line use at all.
In view of the risks that businesses face, such policies (and their enforcement) and training are essential. If you would like to speak with us about either do not hesitate to give us a call.
Tal Williams
Partner
T: +61 2 9390 8331
E: tal.williams@holmanwebb.com.au