Understanding Social Media and the Law

With new platforms and innovations contributing to the upward trend, the continued social media growth gives digital marketers and business owners even more opportunities to connect with new audiences.

Thanks to social media, businesses can reach new potential customers, create brand awareness, and obtain feedback, so that they can be on top of their client's needs and maintain a direct and open conversation with them.

Although social media can help a business promote itself to a large audience, it also opens it up to criticism. Occasionally, unhappy customers can damage a brand's reputation through negative posts and reviews.

Cybersecurity, user privacy, intellectual property infringement, and corporate reputation management are other considerations that business owners should be aware of before they start posting online.

In this article, LawBite's Dallia Appleton shares an overview of the social media risks, strategies to mitigate them, and potential legal remedies.

Stay Safe on social media

An active social media presence can benefit your business, however, it can also come with some risks, one of which is security.

The security risks of social media can have a far-reaching impact on your organisation, including compromise of business and personal accounts, leading to loss of revenue, reputation, and regulatory fines.

If your business engages in different marketing activities such as blogs, business networks, forums, or social networks, you should ensure that you have the following in place;

• A privacy policy: a legally binding agreement explaining how you will use a visitor's information.
• Terms and conditions: helps users know what they can and cannot do on your site. For example, stating that the use of inappropriate or offensive material will not be tolerated.
• A community manager: if you have a forum or network, you should set up a system for monitoring it, whether that's by hiring a Community Manager or getting someone experienced within your business to manage it. They can remove any potentially offending comments and respond immediately to resolve customer complaints openly and professionally.
• Training programs: educate your staff on the responsibility of social media, cybersecurity, and passwords.

Cybersecurity

Cybercriminals can use information taken from an employee's personal social media account to hack your business. This is often done by phishing, sending malware links, or relating to something listed as an interest on a staff member's account to infect your business's system.

The most popular social media sites such as Facebook, Twitter, or LinkedIn are notorious for being targeted by cybercriminals, risking an organisation's proprietary and confidential information, including personal data.

Improvements are continuously being made to the security of social media platforms; however, you should still have ways of working in place that can help protect your infrastructure. Asking your employees not to be logged on to personal social media accounts on company equipment is an easy way to avoid such risks.

Social media law in the UK

Currently, there is little regulation of social media in the UK. The Online Safety Bill is a piece of legislation first proposed in 2019 but has not yet been implemented. The Bill sets out guidelines for removing illegal or harmful content from social media sites.

Under the Bill, Ofcom will be given the power to levy huge fines for serious breaches. However, it has been suggested that the Bill will not be implemented for several years as it faces criticism for curtailing free speech.

So, what remedies are available in law?

Legal action against a social media platform user may be unavoidable; however, it's worth considering all of the options available to you beforehand.

To avoid court proceedings, you should first try to achieve a resolution with the advertiser or author of the offending content.

Complaints to regulatory bodies like the Advertising Standards Authority (ASA), the self-regulatory organisation of the advertising industry, may be able to assist you without the need for further legal action.

Taking legal action

There are several cases of legal action you can take against an author or advertiser, such as intellectual property infringement or passing off, which may provide effective long-term remedies.

An obstacle to legal proceedings may be identifying the author or advertiser responsible for the offensive content. In that case, the first action you will need to take will be discovery proceedings, whereby you compel the social media platform or host to disclose the identity of such persons.

As part of such pre-action negotiation, ensure that the social media platform informs the social media user that legal action may be taken against them if they persist. This may suffice to persuade the author or advertiser to take down the offending content.

What are the main risks of corporate reputation damage from social media?

We are witnesses to a rapid change in the use of technology and how it can impact a business's reputation. One inappropriate tweet from a CEO, employee, or client can go viral and ruin the company's reputation in seconds.

Here are some common corporate reputation risks associated with social media:

Defamation

Statements made online often make claims or allegations that are potentially damaging, not because they make reasonable and genuine criticism of a business or its goods/services, but because they can ruin the brand's reputation.

If this happens, your business may have grounds for a civil cause of action under the law of defamation or malicious falsehood.

To show that the content is defamatory or could amount to malicious falsehood, it would have to be demonstrated, amongst other things, that the content is likely to cause serious harm to your business and is not a 'fair comment.' This means that the content is not a reasonably held and supported opinion.

To establish grounds for malicious falsehood, you must also show that your business has suffered actual financial loss.

Misuse of Intellectual Property and passing off

Intellectual property infringement is a possible cause of action where, for example, a social media post contains content using the same or a similar registered trademark of a third party.

Such use is likely to confuse the audience, which is often done to mislead users. For example, they click a link to a site that such users believe belongs to the trademark owner.

This will be an example of grounds for infringement if the trademark is being used without consent in the course of business. As opposed to, for instance, in a blog where a trademark is being used solely to identify the brand to which the content relates.

Passing off is a similar cause of action where it relates to a well-known unregistered brand name.

Disclosure of confidential information

Unauthorised disclosure of confidential information relating to your business could breach the common law of confidence and, consequently, GDPR.

This could allow you to obtain an injunction against the publisher of such content or an order for the removal of the content. You could then possibly claim damages for the harm caused to your business.

Conclusion

Social media is a powerful tool that can help you market your business and reach a wider audience. But it also has many legal risks, so to be safe, you should speak with a commercial lawyer to understand the implications of your business being online.

If your business already has a presence on social networks, you need to dedicate resources to protecting your accounts and interests.

About the author

Dallia Appleton is a corporate and commercial business lawyer at LawBite. Dallia has over 20 years of experience in private practice and in-house for several large software development companies. LawBite specialises in assisting individuals and SMEs with their commercial and corporate legal requirements.