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Businesses use social media to promote themselves. These days most businesses have websites, blogs, Twitter, Facebook, Instagram and LinkedIn. These platforms are used regularly, therefore, it is important that the message is meeting the standards of the law including copyright, defamation and trade practices.
Copyright protects images, music, films and text on the internet. You cannot just copy the content from other people’s websites. To copy and repost text or photographs from another business’s website or blog is an infringement of copyright (unless you have authorisation). Having clear guidelines on clearing copyright content, editing any material and giving attribution is a proactive measure to manage the risk of copyright infringement. The Australian Copyright Council has published a useful guide on Websites & User-Generated Content available from its website - http://www.copyright.org.au.
Further, defamation issues may arise on social media platforms. Defamation is the publication of content that is false or that damages the reputation of another person. Circulating defamatory content in social media is illegal and can expose businesses to legal action. Even if you did not create the material but share it by retweeting, you can be found to be engaging in defamation. A 2017 case in the Supreme Court of NSW involved defamation made by a former patient against his surgeon: Al Muderis v Duncan (No 3) [2017] NSWSC 726.
Trade practices laws make it illegal to make false and misleading statements about your products and services, and those of others. The Australian Consumer and Competition Commission has advised businesses that they must ensure that their social media pages contain accurate information. This includes comments made by other people. Businesses must take down misleading comments within 24 hours of publication. Smaller businesses with less resources have more flexibility and their responsibility to remove depends on when they become aware of the comments. For more information see the ACCC website: https://www.accc.gov.au/business/advertising-promoting-your-business/social-media.
Another aspect of social media that businesses need to be aware of is the social media behaviour of staff. Employees have their own social media accounts and will tweet about the office and their work colleagues. It is important to remind employees that their behaviour on social media is the same as the behaviour expected by them whilst engaging with people face to face. For example, you should not engage in racist, sexist or bullying behaviour and you must take care not to make disparaging comments about the business or other staff members. In O’Keefe v The Good Guys (2011), The Good Guys fired an employee when it found out that he made threatening and derogatory comments on his Facebook page, out of work hours, about the business and his manager. The Fair Work Commission agreed that the actions of the employer were justified, and a claim by O’Keefe was dismissed. In 2017, the Fair Work Commission ordered LED Technologies to pay a sacked salesperson $6,200 over a crude facebook post that was unrelated to his work, and made when the employee was on the road. Ideally, businesses should develop social media policies for staff, and include clauses in the employment contract that require staff to adhere.
In summary, proactive businesses should develop social media policies which set standards for how the business projects its content on its social media platforms, but also how staff engage on social media. In this way, a social media policy can assist avoid potential legal action as well as avoid internal staff disharmony.
