Social media has changed the way people and businesses communicate and interact.  It allows businesses to increase brand awareness, advertise products and services, provide product information, run promotions, deal with bad publicity and gain customer feedback.  Previously, engaging with customers online provided a competitive advantage; today social media is being engaged in to avoid falling behind.

The developing law in this area and the experiences that have been faced by various brands, indicates the need to stay on top of this space and highlights the importance of spending the time and money now to develop social media strategies and policies.  This is especially the case given that the Australian Competition and Consumer Commission (ACCC) has indicated that one of its consumer protection priorities for 2013 includes online consumer issues.1

Social Media Tips

Businesses should consider the following tips when engaging in social media:

Develop House Rules for the Platform

  • Develop “house rules” that prohibit content that is offensive, infringes the house rules, infringes third party intellectual property, is misleading and deceptive, is defamatory or breaches other laws.
  • Familiarise yourself with the terms of use of the platform you are using and make your house rules consistent with these.
  • Develop an enforcement strategy for breaches of your house rules or use of your intellectual property that is specific to social media.  Outline that if content infringes the house rules it can be corrected or removed at your discretion.
  • Identify if the social media platform will assist with protecting your intellectual property.  Rectification through a platform’s complaint channels can be more effective and better received than legal action.
  • Outline who owns the intellectual property in user generated content.  If it is the user, set out the licence the business has to use that content.

Terms of Use May Change

Appreciate that the terms of use of a social media platform can change at the discretion of the platform provider.  If this is a danger for your company, consider negotiating a separate licence agreement with the platform provider or assessing whether it is practical to cease use of the platform in such an event.

Have a Social Media Crisis Policy in Place

  • Identify key threats to your business and identify the risks involved if social media cannot be controlled.
  • Identify what action is to be taken and by whom.  The action should be transparent and strategic.
  • Consider what content should be made public.  Be mindful that if content is legal and does not breach the terms of use of the platform or the house rules then removal of customer content can result in backlash.
  • Consider whether negative comments can be turned into a positive acknowledgement of feedback or a chance to improve the product or service.
  • Consider whether an apology is required.  Be careful not to make admissions as this can affect your liability.
  • Outline your internal approvals process.  All departments of your business need to be aware of the importance of supplying accurate and prompt information to the marketing department in order to ensure its responses are accurate and timely.

Develop a Social Media Policy for Employee Use

The informal tone used in social media often means the content may not be subject to the same rigorous processes used to write other forms of business communication.  This increases the likelihood of inappropriate content being communicated.

  • Identify which social media platforms are covered.
  • Identify who is responsible for the development of content, for monitoring social media postings, for ensuring compliance with the social media policies (both the house rules and the employee social media policy), for responding to inaccurate and negative comments and for managing social media outbreaks.
  • Outline whether an employee is authorised to represent the business on social media.
  • Identify the company policies and procedures on confidentiality, trade secrets and intellectual property, privileged information, privacy, harassment, plagiarism and defamation, and the consequences for breaching these policies. This ensures consequences are known from the outset.

Monitoring

  • Monitor your social media platforms regularly for false, misleading and deceptive comments, breaches of the Australian Association of National Advertisers’ self-regulatory codes, breaches of your house rules, infringements of privacy laws, infringements of intellectual property rights of yourself and others, defamatory comments and for confidential or privileged material.
  • Identify and use software solutions to assist in the moderation of comments.  Software can be used to pick up certain language or words.
  • Consider monitoring third party social media sites to identify unauthorised use of your intellectual property.

Use an Appropriate Tone

When responding to complaints or enforcing your house rules against users, use a tone that is both personal and professional.  The tone should be calm, genuine, respectful and in line with the brand’s positioning.  Overly legal or complicated responses are often not well received in a social media setting.

Statement

Include a statement on your website or social media page that you are not responsible for comments posted to your website/page.  However, remain aware that this exclusion will not necessarily be enforceable and needs to be accompanied by a clear and effective moderation and enforcement strategy.

Final Thoughts

There are many benefits for businesses to engage in social media, and whilst businesses are wise to be concerned about the risks involved, by being forewarned of the dangers, educated in proper conduct, aware of the attitude of the ACCC and prepared for social media crises, these risks can be minimised.

The assistance of Erin McGushin, Solicitor, of Addisons in the preparation of this article is noted and greatly appreciated.