Social media has changed the way that information is shared in our society. Nine million Australians log in to their Facebook every single day and two million Australians are on Twitter every day. It is no surprise that consumers are sharing information about the businesses they interact with and making decisions about which businesses they engage with based on social media presence.
While social media continues to grow exponentially, many businesses continue to be wary of engaging with it, whether through lack of understanding or fear of legal repercussions if things go wrong. This fear can be well founded when considering the wide range of potential legal actions for duty of care issues, breach of privacy laws, copyright infringement and misleading or deceptive conduct.
One such Australian case in 2011 (ACCC v Allergy Pathways (No 2)) surprised observers when a company was held liable for misleading and deceptive comments posted by one of their users on their Facebook wall. In this case, an allergy clinic was found liable for allowing users to post comments on their wall such as the following:
“Allergy Pathway is amazing. It has worked wonders for me in so many ways. I had food allergies for as long as I can remember, avoiding seafood and shellfish and even bread! After one treatment I could eat seafood with no noticeable reaction … [name], Medical Practitioner”
The court decided that even though Allergy Pathways did not post the comments itself, by not removing them they accepted responsibility for the testimonials and allowed them to appear as advertising on their page. This breached the law relating to misleading and deceptive conduct and opened them to liability. The company and the director were each fined $5,500.00.
This type of case is likely to become more common as the law relating to social media continues to develop.
Despite the risks, the marketing potential of these sites can be hard to ignore with the high levels of penetration and free advertising with a small number of cases such as Allergy Pathways.
The key to managing risk in social media lies in addressing these issues through a process of identification of risk and a strategic document which sets out how these risks are to be managed. While not a “fail safe,” by identifying risk, your business can seek to minimise the potential for negative ramifications.
Examples of things to consider in your social media risk management policy include:
- an overall strategy of what is to be achieved (increased brand awareness, interaction with customers, obtaining feedback, self-promotion);
- whether there are any specific risk factors for your business (particularly relevant for the health sector, organisations that provide tailored individual advice, organisations that work with children or young people);
- an authorisation procedure for posting content;
- appropriate monitoring of social media pages;
- addressing the types of content that are appropriate and inappropriate (both in terms of what you post and what your customers post);
- appropriate privacy levels;
- whether disclaimers are required;
- addressing appropriate social media use by employees; and
- complying with privacy, duty of care, copyright, competition and consumer law.
Whether you already use social media or are looking to in the future, you may consider reviewing your policies and if necessary, seeking legal advice regarding risk management.
As featured in the March edition of the Bendigo Enterprise Magazine.
For more information on social media matters contact Sarah Gee, Solicitor, Robertson Hyetts Solicitors on 03 5434 6666, email sarah.gee@robertsonhyetts.com.au or make an appointment to discuss your specific requirements. www.robertsonhyetts.com.au
