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Social Media and Your Business

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The increasing use of social media (such as Facebook and Twitter) by businesses has raised questions surrounding who is liable for the publishing and reviewing of posts, comments, photographs and the like.

Businesses are not only liable for their own material contained on social media, but the material posted by third parties. A business may be liable if it is found that it knew, or ought to have known, of the existence of material of a sensitive nature and failed to take steps to remove such material without delay.

Such liability may include:

  • infringements of intellectual property rights;
  • breaches of privacy and/or confidence of an individual (such as information or an opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion);
  • defamation (such as words that are likely to make people shun or avoid a person or corporation or words that may lower the reputation of a person or corporation by exposing them to hatred, contempt or ridicule);
  • breaches of consumer legislation; and/or
  • IP infringement (i.e. infringement of registered trademarks or copyright).

In ACCC v Allergy Pathways (2011), it was shown that inappropriate material had been published by a third party on Twitter and Facebook pages operated by Allergy Pathways.  Whilst Allergy Pathways was not responsible for the initial publication of such material, it was found that it accepted responsibly by virtue of the fact that it knew of the material’s existence and failed to remove it.

What can you do to minimise liability?

Any business that operates any form of social media should have clear policies and procedures in place that relate to appropriate use of social media and the monitoring of such for:

  • defamatory material;
  • false or misleading comments;
  • disparaging comments relating to competitors’ products, or any product or person;
  • material that may constitute copyright or trademark infringements; and
  • unauthorised use of a business name and/or logo.

The policy should clearly stipulate that any such material identified is to be removed immediately.

If you require assistance to prepare and implement a social media policy for your business, contact the Workplace Relations Team at Mason Sier Turnbull for assistance.

Author: Chad Issa

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