Posted on: September 8, 2021
Susan Grantham and Mark Pearson, co-authors of Social Media Risk and the Law: A Guide for Global Communicators , discuss the importance of understanding how to engage with online and social media conversations and recommend ten steps to best establish a general social media legal risk assessment that applies to your overall professional social media use and the way it interacts with your organization’s policies and processes.
The immediacy of social media encourages engagement in conversations - often without investing the time to consider any legal risks. COVID-19 lockdowns internationally have contributed to an increase in the use of online and social media, with a reported 82% of the global population now using the Internet to access news content.
Yet the prevalence of disinformation, or ‘fake news’, on social media platforms is rife, reinforcing a need for effective risk analysis strategies to assess potential legal hazards when posting, sharing or commenting on content.
There is an expectation that we should engage in online conversation, but this carries legal pitfalls. In 2020 for instance, Australian columnist Miranda Devine found herself accused of defamation for sharing what was found to be disinformation about a young indigenous boy. Her engagement in this false conversation resulted in a defamation settlement estimated at close to AU$200,000.
When we post to social media, we are not only representing ourselves and our opinions, but we are also representing our organisation. There are several aspects to this, and it is often insufficient to make the disclaimer on your profile that all opinions are your own. So how is it possible minimize legal risk but still engage in this space?
Ten Key Questions to Ask Before Posting
These ten questions are the key to establishing a general social media legal risk assessment that applies to your overall professional social media use and the way it interacts with your organisation’s policies and processes:
On what social media platforms do you have a social media presence?
- Different platforms carry varying levels of legal risk. For example, in some jurisdictions you might even be held responsible for the comments of others in response to your Facebook post.
Where are you based and where do you have a presence?
- Legal actions can stem from beyond your borders because social media is often deemed to be published from wherever it is downloaded rather than uploaded. Be aware of how far your posts reach – both within and beyond your jurisdiction.
How effectively and frequently do you moderate?
- Courts will look to the methods and frequency of moderation to determine liability in actions stemming from your posts. If your attention is drawn to a possible legal issue and you do not act you could be held accountable.
Who has responsibility for the posting and moderation of official material?
- It is essential that clear roles and responsibilities are established if others have access to post or share from your account, or if you post and share official information for your employer. Legal risk escalates when there are gaps in this process.
What level of social media experience and legal knowledge do you have?
- It is vital that anyone posting to social media sites has a basic level of social media law knowledge.
What level of social media experience and legal knowledge do your supervisors or peers have?
- Those further up your reporting chain also need a basic understanding of social media law to assess whether legal advice is needed when threats arise.
What is your level of access to internal or external legal advice?
- Although it is preferred that a relationship be established with the relevant legal team, when using social media as an individual you need some awareness of where to access legal advice when necessary.
Does your organisation’s social media policy cover acceptable use of social media by employees?
- Most organisations have a social media policy or code of conduct that clearly outlines the expectations of employees when they can be identified as employees. Our online footprints mean that most people can be easily identified.
Does the social media policy include a legal escalation process?
- It is necessary that as a professional social media user you understand your organisation’s protocols/chains of command for escalating a legal matter.
To what extent does your organisation’s insurance policies cover the legal consequences of social media?
- Professional indemnity/liability insurance needs to include costs related to legal breaches and defences.
Five Additional Questions When Your Comments May Affect Policy or Regulations
Of course, there are circumstances where other dynamics may arise - for instance, when commenting or engaging on topics related to highly regulated industries (such as health, gambling and finance) where more specific laws may apply. When engaging in these conversations be aware of the impact of any further regulations and ensure you assess further risk associated. The below five steps can be used in such specific circumstances, including when a media law (such as defamation, privacy, intellectual property, consumer and corporate law, employment law or contempt) might apply.
Identify the potential (or existing) legal problem
- To do this you must have developed that basic understanding of social media law. Only then might you recognise that something you are about to or have just posted damages someone’s reputation, impacts an upcoming court case, invades someone’s privacy, breaches copyright or perhaps features discriminatory material.
Review the areas of the law involved
- Once the particular legal problems have been identified, you should revise the elements of laws as they apply to the key jurisdictions where you are publishing. This might reveal that some of the required elements of a legal action have not been met, or that a common defence applies.
Project the possible consequences for all involved
- You need to work through all possible implications of the material for all involved. Reputation is important because legal infringements can be damaging beyond the walls of a courtroom. Your brand can be impacted by social media discussion about you having hosted material breaching laws. Of course, deletion of the most obvious mistakes can be wise, but it is best practice to first do a screen capture (to put it on file) before working through the subsequent steps.
Seek advice / refer upward
- Once your rudimentary review of the problem, the related law, and any potential impact on others has been conducted, if you are still in any doubt you need to take advice from experienced colleagues and perhaps refer upward for potential legal advice if there is not a clear way forward.
Publishing / amending / deleting / correcting / apologising
- Only then, and subject to any advice and instructions from supervisors and lawyers, would you take steps to publish, amend, delete, correct or apologise for a post.
The speed of social media publishing and commentary should not stop effective reflection and legal risk analysis which can be done quite quickly and can pay off substantially by protecting your reputation.