Legal considerations for business engagement in Social Media

1. Risk Management Considerations
By Andrew Bland November 2010
The information in this presentation is general in nature and does not constitute
formal legal advice.
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2. What’s Different About Social Media?
It’s public – very, very public
It’s amplified (one to many, many to many,
possibly millions)
It’s a continuous live conversation driven
by the consumer.
It’s permanent – e.g. Twitter is now
archived in the U.S. Library of Congress
It lacks much of the contextual information
of traditional media.
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3. Reputation Management
Brand Management
Employee participation – implement a
social media policy.
One study: each negative social media
comment costs 30 customers
Another study: 34 percent of adults are
using social media as an outlet to rant
about brands and services (bad PR)
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4.  Privacy issues
 Loss of and/or disclosure of confidential
information
 Discrimination
 Defamation
 Monitoring
 Brand, reputation and IP protection
 “Ownership” of social media accounts
 Database “theft”
 Contact / solicitation of customers post
employment via social media
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5.  Who is going to manage social media in the organisation – consider
a collaborative approach such as Deloittes
 The nature of conduct that the employer seeks to protect itself
against
 Who should such a policy apply to for example, the entire business
or levels within the business, suppliers, business partners
contractors?
 The nature of control over social media use for example, a total ban,
limited use, total accessibility?
 Authority limits or restrictions for use for example, is permission
required, content pre-approval, who is responsible for such
approvals ?
 What can or cannot be discussed on social media forums ?
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6.  What logos, icons, ideas can or cannot be published on social
media forums
 What disclaimers or other information must be included when
participating in a social media forum
 The nature of behaviour that is acceptable or unacceptable
 When it is and isn’t acceptable to use or participate in a social
media forum
 Reporting any breach
 Consequences of breach
 Integration into existing policies.
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7. Provide guidelines for using social media –
you can define what you consider
appropriate
Provide recourse as an employer if
something does go wrong
If you don’t have a policy in place you may
find it hard to discipline staff for what you
consider to be inappropriate use of social
media
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8.  How do you know what is being said about
you, your business, your competitors or your
employee’s online?
 Under the Workplace Surveillance Act 2005
(NSW)you must notify employees in the
appropriate form if you plan to monitor them.
 You cannot monitor employees when they are
‘not at work’.
 You cannot block internet access to particular
websites unless you are acting in accordance
with a policy already in place.
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9.  Think about language and etiquette – nothing
beats good manners
 Understand that every post is public; this is
not a relationship between you and your
computer!
 Consider information you are posting; is it
confidential or private in any way?
 Think about consequences in terms of being
“quoted out of context”.
 Have systems in place for dealing with
negative events.
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10.  Anything posted on social media should be
considered public – ie front page of the
newspaper
 Know your privacy settings, especially on
Facebook
 Be careful of “linking” private social media
accounts to company accounts
 Share freely that which is public (and
appropriate).
 Think about location based social media
networking ie do you want your competition to
know when you’re visiting clients?
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11. Fake Stephen Conroy, Telstra Employee,
March 2009.
• Employee had fake Stephen Conroy twitter
account, made satirical comments.
• Also had a blog in which comments were made
also.
• Telstra started disciplinary proceedings, employee
posted on twitter: “throw me under the f---king bus
just to make Telstra look social-media savvy”
• Bad PR for Telstra in the way it was handled.
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12.  April 2009, Article in SMH.
• A 27-year-old Australian woman, who did not want to
be named, said about six months ago her employer - a
large online technology company - started disciplinary
action against her over a "generic" comment she wrote
on the Facebook wall of a friend.
• She wrote something along the lines of "he's such an
anally retentive asshole", without naming any
individuals or the company. A manager at the company
thought the comments were referring to him and
refused to back down on giving her an official warning,
so she quit her job.
• "managed out" of the company.
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13. Coles Supermarket, Edwardston (SA),
April 2010:
• Employee was sacked after postings on Facebook
about a fellow employee.
• Posted on a friends ‘wall’, so visible to visitors to
that page. Management alerted the same day.
• Management found up to six months worth of
older Facebook posts that amounted to
‘disparaging and untruthful remarks about another
team member’.
• Breach of company policy.
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14. Melbourne Haridresser, FWA Ruling
September 2010.
• Terminated for posting on her Facebook Page
"Xmas bonus alongside a job warning, followed by
no holiday pay!!! Whoooooo! The Hairdressing
Industry rocks man!!! AWSOME!!!"
• Unfair dismissal case brought by the hairdresser.
• Hairdresser won, as the comments were not
deemed to have adversely affected the business.
• May have been different with a social media policy
in place?
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15. Deloittes Australia – participation,
communication, transformation – via a
national social media council
Coca-Cola – great social media
participation managed via a policy
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16. Andrew Bland
abland@blandslaw.com.au
@irlawyeraus
9805 5600
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