Social Media Law Policies: Do you need them?

“Social media is like teen sex. Everyone wants to do it. No one actually knows how. When finally done, there is surprise it’s not better.”
-Tweeted by Google web analytics guru, Avinash Kaushik.

Ah, social media. What is it? Why use it? Should you ever try to sell anything there? Unforgiving are the pitchfork-and-brimstone masses of social media, and let’s face it, they don’t like business. Why? Well, I suppose business on social media is the Web 2.0 version of 19th century hecklers carting snake oil for hair loss and sexual prowess… right into the middle of your pub dinner. Or your bedroom. Or your office Facebooking hours.

Naturally then, businesses have been rather apprehensive when it comes to social media. For one thing, they lose control over the conversation. Irate customers can suddenly answer back on comments or tweets where once they would have faced the media gatekeepers of journalists or offshore call centres. Then there’s getting sued. Nobody likes getting sued.

Getting sued over social media

In 2013, Victoria Bitter found itself liable for racist, sexist and homophobic comments made by fans on its official wall. The comments were provoked by a fairly innocuous status update: “[b]esides VB, what’s the next essential needed for a great Australia Day BBQ?” Response comments included: “racial tension”, “cocaine and strippers,” “big-titted women.” Others went much further. VB was found to breach advertising standards – in short, a Facebook update was deemed advertising, and comments by third parties could be a breach.

Is social media more trouble than it’s worth?

No. Why? Because you don’t like getting sued, for one. Because you’d like to embrace the best social media might have to offer – after all, those insufferable Gen-Y upstart start-ups seem to do so well on social media, and their few-dollar advertising budgets are laughable when dwarfed by your multi-million dollar campaigns.

So… a social media policy…?

A social media policy is the most basic defense against getting sued, and worse, losing, over any social media interactions made with your brand (regardless of whether you have an official social media presence.)

Social media policies help regulate not only what happens on your official social media networks but also how employees or other stakeholders might speak of you.

Policies also help clarify where liability truly lies when it comes to discriminatory or defamatory comments. As you can see, Australia’s courts have not been all that clear as to where liability lies; indeed, the only real consensus to date seems to be that having a social media policy is essential if you want to make or defend any legal claim involving social media.

So, what should a good social media policy include?

  1. Definitions. Boring but true. These should be as broad as possible, defining what social media the policy covers (i.e. just Facebook and Twitter? Facebook Twitter, Pinterest, MySpace and ‘any other commonly deemed social media’? Google? Gmail?) For a full list of recommended inclusions in your ‘definitions’ section, check out the complete social media policy template available here.
  1. Penalties for non-compliance. Like all laws (and a policy is essentially a private form of contract law), you can ensure compliance with clear penalties for breach. For example, if an employee discloses of confidential organisation information, they may be subject to performance review perhaps even leading to dismissal (depending on how pertinent the confidential information was to the organisation.)
  1. Does the policy regulate employee use of the organisation’s social media networks and/or the employee’s own use of personal social media? For example, does it regulate how any employees or other stakeholders which may influence how your organisation is perceived choose to speak about your organisation to their own social networks?
  1. How social media could be used to help the organisation.
  1. How to deal with social media mishaps.

A full guide to writing an effective social media policy, complete with a template social media policy, is available in Social Media Law and Marketing: Fans, Followers and Online Infamy, now out through Thomson Reuters.

Wenee Yap is the founder of Survive Law (Australia’s highest traffic law student site driven entirely by social media), and Marketing Director of Horwood Associates (which is using social media to disrupt the accounting industry.

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