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Social Media Legal Strategy

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Michalsons

All companies should have a social media legal strategy. The following five factors should be taken into account:

  1. Developing a standalone Social Media Policy or including social media policy statements in an existing policy (read our article on different approaches to social media policies);
  2. Implementing appropriate disclaimers;
  3. Dealing with social media in employment contracts;
  4. Educating employees about the risks of social media;
  5. Considering a technology solution to monitor how their brand is being used (or abused) on the social media landscape.

Social Media Policy

Read our article on the different approaches to Social Media Policies.

Disclaimers

Email disclaimers have long since been in use to protect sensitive information, prevent mistakes and losses occasioned by email as well as ensure that employees use email in a responsible manner.

What is a disclaimer? Typically, when conducting business through any medium (whether it be in the physical world, on a website or via email) a variety of representations are likely to be made in respect of either the nature or quantity of goods, if you are involved in selling. It is therefore important to ensure that any representations are clear, unambiguous and intentionally made. Information appearing in a communication that you do not intend to have the force and effect of a representation, should be clearly distinguished and an appropriate disclaimer should be prominently displayed (in an email for example) so that readers of the email cannot be said to have been unaware of such disclaimer.

Where are email disclaimers located? The disclaimer is either found in the foot of the email itself or instead of a footer, there is a hyperlink to a webpage which contains the relevant material.

So how does one do this with Twitter, YouTube and Facebook? In all these forms of social media, the user will have a profile. It is suggested in this article that the company require its employees to insert a link into their profile, which links to a page on the company’s website containing the relevant disclaimer. The advantage of placing the link in the profile, is that all other content published by the user is not interfered with. Further, a prospective friend (in the case of Facebook) or follower (in the case of Twitter), will see the link as it will be prominently displayed. This element of being “prominently displayed” is in fact a requirement of our law (in particular the aspect of our common law which deals with “ticket cases” which govern disclaimers in our law).

Another option in the case of Twitter, is to regularly tweet the hyperlink which links to the terms and conditions on the company’s website. Werksmans Attorneys are an example of a company (a law firm) which do this.  Their relevant tweet reads as follows: “Nothing on this page should be construed as legal advice from any lawyer or this firm. Visit www.werksmans.co.za for our full disclaimer.

You can get a suitable message disclaimer from us.

Employment Contracts

One of the biggest social media risks is the disclosure of company confidential information, trade secrets, know-how and other proprietary information.  The common law does incorporate an implied term of confidentiality into every contract of employment and most employment contracts do have confidentiality clauses in them.  Employers should however look at their own unique circumstances and decide whether or not it is necessary to include, or even expand upon the existing confidentiality clause to deal with potential social media risks.

Social media legal risks

Read our article on article on social media legal risks.

Technology

Many companies make use of Online Reputation Management (ORM) solutions to monitor the social media web for use of the company’s name (and other relevant criteria selected by the company). For an interesting article on Legal Compliance Through Online Reputation Management, click here.

Other legal issues to bear in mind

  • Privacy: users should only use personal information obtained in the course of working for the company in a manner consistent with the company’s privacy policy;
  • Copyright: users must respect copyright laws and attribute works to the original author wherever possible;
  • Harassment and bullying: in the workplace, this includes comments employees make online about other employees, even on their private social networks or after hours;
  • Defamation: refrain from publishing content that may cause injury to another’s reputation.

For more information about our social media services, click here.

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