With more than 600 million Facebook users around the world, social media sites are fast becoming major communications platforms for businesses. But relatively few companies are aware of the legal ramifications of using social media. Before starting social media activities, like setting up a Facebook profile, businesses should consider a number of important legal aspects.
Companies have to handle data security carefully. Businesses that exploit social networks for marketing purposes should understand that a great deal of personal responsibility is required. The interactivity of social networks means that businesses use and process other people’s data as well as their own. To a certain extent, social network providers like Facebook are only service providers; if data on the site is misused, both Facebook and the company which used the data can be held legally responsible. The consequences can include administrative fines, liability claims and even criminal charges, not to mention loss of good reputation. Companies intending to use or publish personal data on social media better know their national data protection regulations. In particular, it is essential to promptly satisfy legitimate data subjects’ requests for data deletion or rectification.
Social media platforms are a rapid means of mass communication. Due to the “viral effect” content can spread with lighting speed and without the originator of the message being able to stop the spreading (an effect often used intentionally in “viral marketing” campaigns). A (quasi no-cost) post on a social network thus may become almost impossible to control. This is a potential source of risk for businesses. For example, if a post contains libellous assertions about a competitor or a private person, the company in whose name the post was published may find itself facing claims for libel. Apart from the civil law consequences (action for injunction, damages and retraction of the assertions) the potential loss of good reputation, since such action may become public, should not be underestimated. Companies are therefore encouraged to establish internal rules for employees who are active in social media platforms in the name of the company or whose posts are publicly attributable to their company position. Such rules should establish a “posting policy” regarding what employees may or may not say about the company or competitors. If the company has its own Facebook profile, this communication channel should be handled with the same legal care as classic communication channels like printed advertising.
Uploading a copyright-protected picture onto the company’s Facebook profile without the author’s consent may immediately violate two of the creator’s exploitation rights: the right of reproduction by copying it onto the Facebook server and the right to make available the copyright-protected work to the public by making the picture accessible on the social media platform. Due to the commercial nature of the company’s use of the social media platform as well as the broad public reach of such publication, such use should always be considered prudently in order to avoid civil and criminal law sanctions. Even with regard to content created by third parties contractually bound to the company (like an advertising agency) it is vital to make sure that all necessary rights for publication on social networks have been sufficiently assigned and/or licensed and that the chain of the assignment of rights is intact all the way back to the creator.
With regard to trademark law the same principles apply in the online and offline worlds. Use of someone else’s trademark or of signs similar to these, should be avoided. But the supra-regional and international character of most social media platforms means that even small local businesses could see themselves confronted with trademark infringement claims of third parties located in another country. Furthermore, new media calls for new ways of publishing judgements. In a recent trademark dispute case, the Commercial Court of Vienna ordered the publication of a judgement on YouTube and on the infringer’s Facebook profile. Such measures become necessary in order to reach the same target group that was confronted with the actual trademark infringement. When a trademark violation occurs, the court’s decision should be issued on the same platform.
If it’s illegal in the physical world, then it’s probably illegal on the internet too. Insulting or libellous statements are just as criminally punishable as they are in the “offline” world. Such statements made on publicly accessible social networks are equivalent to publication, which in many cases constitutes a crime. Since 2006, businesses in Austria are subject to criminal law, just like individuals. Their (potential) criminal liability refers both to the “offline” world and the internet. Apart from “classic” internet-related offences, like the depiction of illegal content (taunting or publishing NS-related content), the misuse of personal data can also have criminal consequences. A business which gains personal user data by way of its Facebook presence and then uses it for marketing purposes might face significant fines. The responsible individuals could also face criminal sanctions that theoretically could lead to imprisonment of up to one year. Seeking legal advice is therefore always strongly recommended prior to reaching into the “cookie jar” of social networks.