Legal problems have arisen since the begining of publishing from ill-considered publications, statements and comments. Unsurprisingly nowadays email comments and advertising statements frequently raise legal issues. However, the crowd noise is now all about social media.
There's been a debate brewing on whether employees, especially during work time or in association with their employer's activity, should be allowed to use social media or should be blocked from using it.
Should they, during worktime or whenever, use Facebook, Twitter, YouTube, a personal blog or some other social media facility? The debate hit the cover of today's Australian Financial Review with a story on corporate policies for the use of Twitter by employees.
The framework in such stories is simply silly. Increasingly the world is not linear, bipolar, it's not a power switch with two positions, it's not about either "yes" or "no", it's not about "two sides to the story", it's not a tug of war with a rope with two ends. No, in a networked world, with human society on a network, it's about a matrix of connected nodes, tens, hundreds, millions, billions of them. We need a recognition of this if we are to move forward with traditional considerations, including legal policies for writing stuff online. Send a tweet and get followers. Don't tweet and hope people find and contact you.
Certainly, untrained, uncoached, inexperienced or very angry people often fail to realise that a verbal conversation is very different to an email, blog post, tweet, LinkedIn or Facebook update, or an instant message. We wrote on this two internet generations ago in 2001 in Email Abuse [PDF].
Writing online leaves a digital trail and evidence as the writing travels through desktop, mobile, wireless or other devices and through cyberspace.
If you want no potential legal liability then you can endeavour to block employee use of social media. In many cases that's also a perfect way to shoot your business in the foot. Sure, go right ahead, avoid writing online to ensure your business avoids engagement with the market of ideas, people and cash flow chasing information and conversation about products and services even while in their pyjamas.
The world has changed. If you've read this far you are either aware or concerned that marketing is more than ever about conversations, not advertising. Consumers and clients want information before they buy. For example, it is reported that we are approaching a point in Australia where eyeball time is more on social media than on email. What does that say to you about reliance solely on email newsletters and static websites (ie brochureware)?
It's true. There is risk. Today more laws apply to what is said or not said in statements, comments and advertising than ever before. There's also more to consider given the explosion of self-expression made possible with IT gizmos. People are also communicating in new ways using combinations of text, photos, graphics, audio files, and uploaded videos to YouTube and elsewhere. While the digital devices are relatively new the relevant law in most cases is long standing and applicable for the regulation of writing online.
Poorly considered or rushed statements are sometimes made by pioneer users of such new media. Which reminds us of a favourite definition of "pioneer": A pioneer is a person in the middle of the prairie with an arrow in the back. Beware of frontiers, whether they are physical or legal. As we've said being online offers little or no protection.
That's what this article will go on to talk about. But remember always. It is better to have a policy that engages and regulates than to follow a "Just say no" approach. Just say no has been an UTTER FAILURE in connection with prohibition of alcohol. It is an UTTER FAILURE with regard to prohibition of drugs. Get the picture?
Despite their number and complexity, broadly speaking Australia's laws relating to online writing work remarkably well.
The applicable legal categories include the laws for spam, intellectual property, privacy, confidentiality, contempt of court, defamation, and industry-specific legislation for gambling, alcohol, tobacco and financial services. In our law firm we specialise in preparing workable workplace policies for information, including for social media policy and policies to assist knowledge workers (yes that's you!) to use social media more effectively in terms of marketing. Together with our non-lawyer collaborators we could fill an entire call centre with experts on all aspects of social media, and I do mean all aspects.
In addition to reviewing the law, to deal with needs or problems connected with online writing, it is important to review applicable industry conventions and best practices. These may include the use of legal notices, consents, permissions, disclaimers, terms and conditions associated with a statement. It is not possible to provide a practical summary - even in a few pages of writing - on the numerous laws, conventions and applicable best practices.
Instead, set out below is a general and short legal checklist. The 18 questions are designed for use by those who make, approve or are legally responsible for writing online. They are for brainstorming, they are not a framework for developing a social media policy or a process and procedures document.
- Where does the statement appear, have you disclosed who you are and your contact details?
- Do you need a licence or other official registration for what you are offering or saying in your statement, eg a financial services licence?
- If the statement contains personal information, are you complying with privacy law requirements regarding the collection, disclosure, use and other dealings with personal information?
- If your statement is advertising, are you complying with the many applicable regulations (eg for pharmaceuticals, alcohol and tobacco advertising)?
- Are any legal disclaimers required or appropriate for the statement? If disclaimers are needed, are they also prominently presented?
- Before making the statement, should you clarify the intellectual property law position regarding any content, eg add a credit or set out a copyright or trade mark notice?
- Is authorisation or permission required from any authority before making the statement (eg censorship ratings)?
- Might the statement be defamatory - ie lowering the public's estimation of a person, exposing the person to hatred, contempt or ridicule, or causing the person to be shunned or avoided? (Put simply, in Australia there is no legal right to free speech.)
- Is a special consent required prior to use, eg photos of a child taken near the child's school?
- Is your statement in contempt of court? Example: The Guardian reported on 30 August 2006 that the New York Times blocked British visitors to the Website of the Times from accessing a front-page story on a UK terrorism alert. It said the New York Times feared it may be breaching contempt laws in the UK, where it has assets which in the worst case scenario might be seized following prosecution. The story was also pulled in the physical form, the entire British shipment of the paper was cancelled.
- Is the statement in breach of any relevant industry code of conduct or regulation (eg regarding sexually explicit material or gambling)?
- Is the statement in breach of any contract, eg a confidentiality obligation or employment contract?
- Is the statement contrary to your organisation's obligations under employment law? For example, take care of statements related to photographic or video monitoring of a person in his or her workplace.
- Is the statement passing off someone else's brand as your own?
- Does the statement involve any material omissions or misrepresentations? This is particularly risky for those involved in giving advice or making alleged factual or scientific claims in advertising. For example vendors of real estate and their agents have been found liable for misrepresentations in their ads.
- Are there terms and conditions relating to the statement, and are they prominent, easily accessed, in writing and require acceptance?
- Are you keeping a legally appropriate archive of the statements, ie are you confident about your document retention policy? Example: The accompanying image is the front page of the US government's 2004 court pleading against Arthur Andersen, the global accounting firm which collapsed shortly after that case began. It was alleged to have not complied with data law due to shredding of Enron Corporation data at one of its offices.
- Is there a policy, procedure, or training system that should be in place to reduce legal risks for those responsible for making statements? Note that Australian trade practices law, and other law in Australia, increasingly favour those who walk the talk by implementing regular training programs. To minimise legal risks your business, company or organisation should plan to build relevant competencies in its people.
The above checklist relates to law only in Australia. For specific statements it is advisable to obtain specific legal advice, hence the list is provided as general guidance only.