Law, Social Media and Business

As a business exploring the benefits of Social Media for promotion you probably haven’t got as far as thinking about a Social Media policy. Even if you have gone that far, do you have any idea what legal problems you need to cover?

Do you need a Social Media policy for business?

If you want to be able to give direction to your employees, then Yes you do!

Like anything new we have the early adopters before moving up the bell curve to where a large portion of the population are using Social Media in business. The problem with the early adopters is that they test out all of the problems and might over-do-it a little when it comes to putting policies in place.

And the worst thing? – Just reacting without having a documented social media policy for business that can support your position and help you to avoid unnecessary legal action from disgruntled employees.

My guess is that people are reacting, rather than being pro-active around their Social Media policy. Planning hasn’t really come in to  it. This is a problem and the legislators in the US appear to have adopted this issue and decided that the only real way to address it is to create new law, in not just one state, but a string of them. Social Media laws are being introduced to stop employers from requesting access to private social media accounts.

So what problems to most lawyers focus on?

I’ve been to numerous presentations and read a bunch of legal articles about social media in the workplace. The most common problem raised by lawyers is corporate espionage. Seriously? Ok, so the multinationals pay more money and yes the chance of a casual comment from the weekend BBQ suddenly being spread across the internet and possibly impacting on big business is greater than ever. But what about the millions of SMEs (small and medium enterprises) out there that employ most people and create a substantial proportion of our gross national product? I do not think corporate espionage is even on their radar.

So what are the real problems with social media in small business?

Defamation in Social Media

Business is personal. People get really upset when nasty things are said about them or their business, and the easiest way to track that is online. The problem is that actions for defamation are not usually open to business, only individuals, charities and businesses with less than 10 employees. So defending your business is not necessarily easy. On the other hand, if an employee makes a statement that can be attributed to your business, then potentially the business can be liable! If you have business social media accounts set up, or people are linked to the business through their social media accounts, make sure that you have some rules (and common sense) in place around what comments are and are not acceptable.

Vilification in Social Media

Big word, but what does it mean? Vilification is some form of behaviour that gets other people riled up against a particular group based usually on race. In some states of Australia it can include gender or religious beliefs. The problem here is again if an employee’s behaviour can be attributed to your company.

If an employee is on the kids local soccer club forum and suddenly starts a damaging racial rant that results in a huge argument with other parents, then its unlikely to be able to be linked to your business. On the other hand, an intranet newsletter or union correspondence is likely to be associated with them as an employee and potentially a problem for your business.

Discrimination in Social Media

There are only a few activities where anti-discrimination law is enforceable, and employment is one of them. If you search an existing or potential employee online and come up with information that affects your decision to keep them or hire them as an employee, then you must be sure that is not associated with any of the protected attributes covered by anti-discrimination laws. Having a social media policy is now essential if you want to protect your business from being sued for unfair dismissal.

Protected attributes include:

  • gender identification
  • sexual orientation
  • marital or family status
  • pregnancy
  • race, skin colour, ethnic origin
  • age
  • disability (physical, mental, illness etc)
  • political or religious belief
  • union membership

From a purely practical perspective, you can be seen to be discriminating if your online presence is not accessible by people with disabilities. Consider how people with limited eyesight or mobility in their hands are able to navigate everything you have online.

The other aspect is to ensure that staff responding to customer questions and complaints don’t do anything that could be considered discriminatory.

Bullying and Harassment on Social Media

The most severe impact of bullying is death and as an employer you can be held responsible for what your employees do to each other both inside the workplace and online. As a workplace health and safety issue you must take reasonable steps to eliminate or at least minimise the risk to your employees. Having some guidance in place and training staff in their obligations is necessary to reduce your risk in this area.

Privacy and confidentiality in Social Media

You have an obligation to protect the personal information that you collect as a business – whether of employees or customers. You also want to make sure that your employees are not sharing confidential business information through casual conversations online. “Yes, travelling again, got a deal happening interstate and will be away until its over the line.” Simple comments and tell your alert competitors a lot about your business.

Copyright and Trade Marks on Social Media

Just because you can copy it online does not mean it is not protected material. If you don’t give your staff guidance they might be breaching copyright on images, videos or articles without any intention. Impact for your business – unnecessary litigation!

Misleading and Deceptive Conduct in Social Media

Even if  you didn’t authorise any exaggerated claims about the products or services of the business, if your employees or customers are talking up the business on social media and a customer believes the hype to their detriment, you could be liable. Its easy to set some guidelines and train staff on what can and cannot be said and how to respond to comments from enthusiastic customers that might be a little ‘over the top’.


That is a quick ‘heads up’ on what you need to keep in mind when preparing a Social Media Policy for Business.

If you need any help in putting together a policy, or dealing with existing problems – simply contact us.

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