The nature of communication and the interaction between people is drastically evolving. We are moving towards a world where everything is connected through the internet, specifically through social media.  

We have a strong desire to obtain information and news instantaneously as it is released or happens and the capability to communicate via various devices has only increased this hunger. Figures released late last year by Facebook show there are currently 10 million Australian users of Facebook and the use of Twitter and LinkedIn is increasing.1 If the Facebook community was a country, it would be the third most populated country with more than 800 million active users.2

What is Social Media?

Social media is the use of web-based and mobile technologies to turn communication into an interactive dialogue. Social media is a group of new kinds of online media that allows social communication, as a superset beyond more conventional notions of social communication. There are various forms of social media and there are always new forms of social media being developed. Currently the main forms of social media are:

  • Social networks (Facebook, MySpace, Google+);
  • Blogs;
  • Wikis (Wikipedia, Wikinews, Geo-wiki, GeoNames);
  • Podcasts;
  • Forums;
  • Content communities (YouTube, Flickr, wesabe);
  • Microblogging (Twitter, Posterous, Dailybooth);
  • Virtual game worlds (World of Warcraft); and
  • Virtual social worlds (Second Life).  

Complex Web of Laws

In a nutshell, the laws that apply in the real world also apply in cyberspace. While the law has not entirely caught up with technology and there is no specific piece of legislation that regulates social media sites and the use of social media, it is important to keep in mind that what you do with social media can have real world consequences.

At this stage there has not been any discussion of legislation specifically tailored towards the regulation of social media sites and the use of social media but it isn’t hard to imagine a law in the future that could regulate social media. The basis for a specific social media law would arise from laws that currently exist. The following are some of the areas of law that currently govern the way we interact and do business through various social networking sites.  

Privacy

If a business stores contact details and personal information about its customers, the Privacy Act 1988 (Cth) requires the business to make the customer aware of what personal information is being collected, how it is to be handled and give them the opportunity to “opt-out” from receiving any marketing material from the business.  

However, if your business is considered a ‘small business’ meaning it has an annual turnover of $3 million or less, then it generally does not need to comply with the Privacy Act.  

Even if your business does not need to comply with the Privacy Act, there is always the risk of your business database being hacked into and customer personal information being stolen. It is good business practice to put in place some procedures that comply with the Privacy Act regarding the collection and storage of personal information in an effort to defend against any potential cyber attack.

Spam and Commercial Messages

Spam is defined under the Spam Act 2003 (Cth) as “unsolicited commercial electronic messages”. Examples of commercial electronic messages include email, instant messaging, SMS and MMS.

The Spam Act applies to any commercial electronic message with an Australian link.

In situations where a business purchases a list of email addresses for marketing purposes, the Spam Act is likely to apply. However, the Privacy Act may not apply where ‘personal information’ is not used. Information is deemed personal information if the business can identify or reasonably ascertain the identity of the individual to whom it relates.

Alternatively, if a sender is deemed exempt under the Spam Act (such as religious organisations, registered charities, political parties and educational institutions), the sender must still comply with the Privacy Act if the direct marketing message contains personal information.

When sending a commercial electronic message, the sender must comply with the Spam Act to ensure the commercial electronic message:

  • is sent with the consent of the recipient;
  • identifies the sender; and  
  • allows the recipient to unsubscribe from receiving further commercial electronic messages.

‘Exempt’ messages must still identify the sender.

Advertising

Material advertised through social media must be clearly identifiable and be easily distinguished from any other content, such as terms and conditions and independent product reviews. Businesses should also monitor their social media pages to ensure testimonials, feedback or comments from third parties do not contravene any laws. A recent decision by the Federal Court of Australia highlights how businesses may be liable for misleading and deceptive statements made on their social networking sites by third parties. In Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) the court found that the company and its former director were liable for testimonials posted on its Facebook and Twitter pages by clients, even though the company itself did not post the testimonials. The Court found that the company had become the “publisher” of the testimonials because it knew of the posts and chose not to remove them.

Intellectual Property

Businesses need to be familiar with copyright laws whenever they develop social media content. The copyright in social media content developed by a business or its employees belongs to the business. However, posting a comment, image or video file without the permission of the author could be a breach of copyright.  

Businesses need to be mindful that the terms of use of social networking sites such as Facebook and Twitter clearly state that for content that is covered by intellectual property rights (photos, logos, videos etc.) the user grants Facebook and Twitter a worldwide non-exclusive, royalty-free license (with the right to sub-license) to, amongst other things, use, reproduce, copy, publish and transmit any IP content that you submit, post or display through your account. Facebook’s terms of use provide that “the license ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” Twitter’s terms of use do not contain a period on which the license ends.

Even though businesses may not intend to establish a Facebook or Twitter account, it is very easy for a person to create an account using the businesses name or brand causing confusion. It might be worthwhile to create an account to prevent another person creating an account using the name of your business or logo.

Businesses need to be vigilant that social networking sites could in fact be creating pages that contain content about their business that might not be favourable. An example is Facebook’s ‘community pages’.

Defamation

Users of social media must recognise that posting content to a social media site is the same as publishing that material via traditional forms of media. Posting or tweeting a slanderous comment against another person via a networking site is potentially a lot more dangerous than a defamatory comment appearing in the local newspaper. Traditionally, a defamatory comment could be retracted via publishing a suitable retraction in the local newspaper, however, given the speed in which information is updated and moves through cyberspace, this would seem near impossible, especially if it has gone viral.

Even though action can be taken against the writer, the difficult part is ascertaining who the actual writer of the defamatory comments is, as most people post comments under an alias.  

In the Workplace

Businesses are increasingly relying on social media to promote their business. With this comes the increased use of social media in the workplace. There are an increasing number of businesses that are restricting their employees access to social media sites such as Facebook and Twitter. However, a number of businesses are reluctant to restrict access as they hope allowing employee access to these sites could increase promotion of their business or assist with the recruitment of new staff.

Employers need to be mindful that they must provide clear guidance to their employees of their businesses social media policy to ensure employees are aware of their social media responsibilities in the workplace. There have also been cases where the inappropriate use of social media against co-workers (such as harassment) outside of work hours has resulted in employees being dismissed for serious misconduct.

Recent decisions by Fair Work Australia have again confirmed that proof of excessive use or the inappropriate use of social media during or outside of work hours may constitute a valid reason for termination of employment.

Employers have used Facebook profiles as evidence in workers compensation cases and to dismiss rogue employees who have continually failed to show up for work without any apparent reason.

Key Points

The growing impact that social media is having on our lives and on the way we do business should make us all a lot more vigilant and cautious of the possible legal consequences that could arise. Some points that you should consider when using social media:

  • even though there isn’t a dedicated piece of legislation known as ‘the Social Media Act’ there are legal consequences from the misuse of social media;  
  • put in place procedures that comply with the Privacy Act regarding the collection and storage of personal information to defend against any potential cyber attack;  
  • make sure posting a comment, image or video file is not a breach of copyright;
  • make sure a post or tweet via a networking site is not a slanderous comment against another person;  
  • be mindful that social networking sites such as Facebook and Twitter can use any content that you post on your Facebook page or Twitter account; and
  • implement a social media policy in the workplace to ensure employees are aware of their social media responsibilities in the workplace.