Addressing legal risks in your social media strategy

Over the past few years, there has been a rapid increase in the use of social media tools (such as LinkedIn, Twitter and Facebook) as marketing and media channels for businesses and their staff.

The instant nature of these tools, and the ease of access and distribution to a wide audience, gives organisations less control and visibility (than more traditional marketing methods) over what is published, how it is presented and to whom it is sent. Accounts and content are managed by the third party provider, and often created in the name of individual employees, creating a cross-over between the interests of the provider, the individual and the business.

This has led to some increased legal risks for businesses. Consider the following questions:

• Are you aware of the extent to which your staff Tweet or post blogs about business matters?
• How do you ensure your staff do not make defamatory or untrue statements, or post unlawful content, for which you will be liable?
• Do you have rights or access to the content of posts, and to business contacts who may “follow” or be “connected” to your staff members? Can an employee carry these over for the benefit of a competitor when they leave your organisation?
• Do you know who else has rights or access to content and contacts (e.g. the social media provider in accordance with their terms of use)?

Control, intellectual property and confidential information

With traditional marketing materials and customer lists, organisations can maintain more direct control over what is published, and can claim ownership of copyright and database rights. In addition, they can restrict further use by a former employee through confidentiality and data protection obligations. However, in relation to social media, there are complexities in determining who owns such rights (e.g. the individual, the employer or the social media provider) and it is more difficult to claim confidentiality when posts and contact lists are often publicly available.

In addition, as discussed in OBEP’s recent article on maintaining control of business communications and information, a business cannot claim ownership of information (such as account or contact information) in itself.

So what can you do?

Organisations may need to look to additional practical and contractual controls to protect their interests; for example:

• having a policy describing the extent to which staff are permitted to use social media for business purposes and/or as a representative of the organisation;
• considering the terms and reputation of the social media provider and the impact on accounts and published content;
• retaining some oversight and/or control over what is published, where it is published and its compliance with legal requirements;
• setting up company (rather than personal) accounts which the staff can use whilst they work for the organisation; and/or
• requiring employees to provide the organisation with details of accounts, contacts and content, and imposing post-employment restrictions on re-using them.

These controls can be built into terms and procedures governing other marketing activities and materials which staff create or access on behalf of the organisation. (Some of these matters were also considered in OBEP’s earlier article referred to above in relation to other business communications and information.)

The law is still developing in this area and there is no clear formula to protect an organisation’s interests. The actions to take may be limited by the terms and setup of the social media provider (which may, for example, only permit personal accounts), limits on enforceability of contractual restrictions on staff (particularly as individual business networks become more commonplace) and other practicalities (for example how to monitor social media content sufficiently). The risks and potential solutions will therefore need to be assessed in context when formulating marketing and social media strategies.

Olivia Whitcroft, principal of OBEP, 3 December 2012

This article provides general information on the subject matter and is not intended to be relied upon as legal advice. If you would like to discuss this topic, please contact Olivia Whitcroft using the contact details set out here: Contact Details

Related Article

• “Maintaining control of social media contacts” published in the November 2012 Evans Employment Law Newsletter (www.evansemployment.co.uk)