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What your business needs to know about social media and the law

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We all know that a strong social media presence and effective engagement can contribute to your business’ success. It is a great way for your business to promote itself by interacting with other businesses, professionals, and your customers or clients.

Social media is yet to be specifically regulated in relation to consumer law, but that does not mean that your business’s social media presence is free from obligations under general consumer law, contract law, and intellectual property law.

Here we have set out for you five ways to ensure your business meets your obligations and that your customers and clients meet theirs on social media.

1. Be familiar with the platform’s Terms of Use and regulations
If you are using external social networking platforms such as Facebook, Twitter and LinkedIn, be aware that each have their own policies which apply to their users.

Your business needs to understand the terms you have agreed to by joining the site and take care that your conduct doesn’t breach the terms.

In 2013, Bendon Lingerie ran a promotion encouraging Facebook users to post photos of themselves and their friends in Bendon Lingerie in order to win a prize.

This was considered by Facebook to be a breach of their ethical code, and they shut down the promotion.

2. Don’t breach the Australian Consumer Law
Your obligations to consumers under the Australian Consumer Law (ACL) are the same regardless of whether you are advertising and selling online or offline. This is especially true in the case of advertising and promoting your business.

Offline you must not make any false, misleading or deceptive claims about your products or services. Similarly, posts and advertisements online and through social media must not be false, misleading or deceptive.

One area where it can be very tempting to promote an inaccurate impression of your business is through online reviews.

Online reviews are required to be a neutral third party’s evaluation of your business so that users are able to make consumer decisions without biased influence.

The Australian Competition and Consumer Commission (the consumer law watchdog) encourages businesses to make sure that any personal connection between the reviewer and the business is disclosed and reviews must reflect a genuine opinion based on actual experience of the goods or services.

A business that allows a post to be published which is not genuine or a business that removes a genuine post that reflects badly may breach the ACL.

3. Manage your user content
Not only are you responsible for your own activity through social media, but you are also responsible for posts or comments that are written by the public on your social media page. Just as your business cannot make misleading claims, you should not allow others to post deceptive comments on your pages.

A way to protect your business from breaching the ACL as a result of your user’s conduct is to clearly set out the conditions under which they may interact with others and your business through the social media site.

This can be done through your own Terms of Use document which applies to the users of your business’s page. It could include policies about how the user may interact with others and your business.

4. Industry regulations
In addition to general laws such as the ACL, many industries may have regulations that apply to your business conduct on social media and other social media-specific policies.

It is important to know the rules that regulate your industry, as well as the guidelines that have been put in place to help you comply with the regulations.

It is also useful for you to distinguish the enforceable rules as well as to know which body has been set up to monitor and enforce the rules.

5. Intellectual property
Protecting intellectual property in cyberspace can be a tricky task. There are two main intellectual property rights that you need to consider: copyright and trade marks.

It is a two-way street; you need to make sure your engagement on social media is not infringing on someone’s copyright or trade mark, and you need to monitor the networks to ensure your copyright and trade marks are not being infringed.

You must make sure that what your business posts on social media sites or on your own site is original work, or lawfully acknowledges the copyright owner.

It is not necessarily infringement to refer to a registered trade mark, but if your use of the registered trade mark (or something similar) causes others to think you are connected with the registered trade mark owner, it may be considered infringement.

For this reason, it is important to carefully consider the material you post and how readers or viewers will perceive the content.

It is your responsibility to monitor your intellectual property. If you have a name or a logo that represents your brand, it is a good idea to have it registered with IP Australia. This is the strongest protection you will get for your brand.

One way to protect your copyright and trade marks is through the Terms of Use, which should address the intellectual property and tell users how they may use your content. Use a copyright notice or registered trade mark symbol to let others know that you own the intellectual property.

To Summarise
Don’t fall into the trap of thinking social media falls outside the scope of traditional commercial law. Your business is responsible for ensuring that your social media engagement is not contrary to your obligations.

Consider the ways you can make sure your consumers are also complying. Importantly, if you are unsure – ask! You can let our online business lawyers know your questions on 1300 544 755.

One of the greatest investments you can make is in your education. If you want to take your business to the next level, click here to book in for a business discovery session with our team, or call us on 1300 156 842. 

To learn more about Ursula or LegalVision ILP, follow Ursula on Twitter:@Ursula.Hogben

About Ursula Hogben

Ursula Hogben is the co-founder and General Counsel of LegalVision ILP, a commercial law firm, with free legal information, online services and fixed-fee prices. Follow Ursula on Twitter: @Ursula.Hogben

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