[su_box title=”Update 01 June 2018″ style=”soft” box_color=”#10b0d8″ title_color=”#0c0b0b” radius=”6″]Since this was published way back in 2011 there have been significant changes in the way that we understand social media and use it. Along with our maturing understanding of social media we have become all too familiar with it’s use for pushing toxic attitudes on everything from race, religion, migration, and sexuality to what our neighbours have done to upset us. To add to the fire Facebook and others (see the Cambridge Analytica scandal) have proven that we are indeed living in a whole (brave) new world. More than ever we need to develop ways, personal and institutional, to approach the use of social media ethically, morally and with a sense of responsibility for the powerful and far reaching effects on our own lives and those of others that its use entails. [/su_box]

Falling in Love is So Easy To Do

You probably remember some of the lyrics from that classic song of disillusionment with love and relationships, ‘I’ll Never Fall in Love Again’. If not, here’s a little reminder:

What do you get when you fall in love?
A guy with a pin to burst your bubble
That’s what you get for all your trouble
I’ll never fall in love again
I’ll never fall in love again

We all know that after the first flush of love there’s a good chance that the guy with the pin appears and we find ourselves staring at someone with a few more warts than we expected. But it doesn’t stop us from doing it again… and again… and, for the really stubborn or hopelessly romantic, again and yet again. Maybe until the embodiment of wartless perfection enters our lives but more often than not, until we learn to love a wart or two and not expect the surgically seamless, Botox-smooth, vision of love that may have beguiled us up to that point. Our love affair with social media is entering the visible warts phase and many individuals and organisations are starting to question the real nature of what it is they have so enthusiastically embraced.

Currently, there are around a billion of us using social media – 1.4 billion of us with Facebook alone (2104 stats). And by ‘us’ I am talking of the individual and the collective: me, my children, my friends, my family, casual acquaintances, work colleagues, my company, organisations, government bodies … all of ‘us’. And all of ‘us’ connected and sharing a lot more than may be wise in a vast virtual web of relationships that often seem liberating and exhilarating. But, like every love affair, the first flush of romance has now passed and we are starting to see the appearance of problem areas with our use of social media. From the personally shattering discovery on Facebook that your husband, who is still married to you and living with you, has married another woman[1] to losing your job because of an idle Facebook boast[2], we are starting to see signs that there is a darker, far more anti-social face to social media than we had ever imagined.

Avoiding the Bursting Bubble

There’s a very simple guideline for individuals and their use of social media – don’t publish anything that you aren’t happy with the whole world knowing. There are a lot of disturbing privacy issues surrounding the use of social media and despite the attempts of some social media sites such as Facebook to reassure us that our data respects our privacy there is a lot more grey in there than nice, clean black and white. Who owns our profiles? How easily can we remove our data? What are the situations in which our data can be sold or provided to other organisations? How ‘private’ are the privacy settings we select on a given site? What measures can we take when others post messages, photos or videos of us that cause hurt or are defamatory or injurious to our reputation, relationships with others, well-being or career? These are all questions that we may not have asked when we signed up so trustingly but that are now starting to beg answers for, usually after we’ve had one or more unpleasant social media slaps in the face.

For organisations using social media it is even more important that these and a raft of other questions are both asked and answered. Recent surveys show that over 75% of organisations[3]  will use social media in 2011 in one way or another. Of these 53% say they ‘lack knowledge or expertise to implement social media activities’[4] . It is more than likely that your organisation will fall into both of these groups and without a robust social media policy or at least a clear understanding of the legal and privacy issues that you face you are open to having your social media bubble burst in a potentially damaging and costly way.

The wisest way forward for your organisation is to engineer the asking and answering of these questions into a cohesive and comprehensive social media policy document. Ensure that the document, whilst being comprehensive, is clear and easy to understand by all stakeholders so that it is actually implemented by them. It is also important to consider this as a ‘work in constant progress’ document – social media and our uses and relationship with it, as well as the legal framework around it, is changing rapidly and your policy document will need to be frequently reviewed and revised. It is a key document for your organisation and should not be thought of as a mere nod in the direction of organisational or political correctness.

So where do you start? What are the main risk areas for your organisation? In most cases you can break the risk areas down into the following five areas[5]:

• Third Party Content. Do you have the right to post all third party content? Your employees may be posting text, video and images to your social media sites. Do you and they understand your legal responsibilities in terms of the use of copyright materials? If they are generating content on your behalf (e.g. video for YouTube) – are they incorporating images or sound track media from sources where copyright permission has not been obtained or is being violated. It is important that your employees understand what they can and cannot post in terms of third party content.

• Content Ownership/Control. This is becoming a major issue as social media sites venture into selling our data or profile information to other organisations. Who owns your social media profile pages? If you cancel your profile or delete your page, is the content really gone or does the social network retain the right to access, use or share your deleted information? Have you read the terms of use for the social networking site? In your haste, could you be disclosing sensitive or proprietary information about your organisation or employees? We don’t usually take the time to read the lengthy Terms and Conditions that social media organisations provide a handy check-box to agree to, but having a look through them is important. An excerpt from Facebook’s TOS is enough to demonstrate why caution should be exercised (my italics and underlining):”For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.When you use an application, your content and information is shared with the application.  We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information.

When you publish content or information using the “everyone” setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).[6]”

• Defamation/Other Torts. Late last year the Sunday Mail (Qld) ran an item on the increase in defamation cases connected with Twitter and Facebook[7]: “Cyber law experts,” the article starts, “are predicting an explosion in defamation cases as more people try to restore reputations after being attacked on social networking sites such as Facebook and Twitter.” The article goes on to quote Australian Defamation Lawyers principal Barrie Goldsmith who says, “It is no longer something pursued solely by celebrities and big companies. Individuals and smaller community-based cases form over half of our workload now.” Could any of your posted content be considered defamatory to a third party? Could it be the basis for other liability cases, such as intentional infliction of emotional distress, interference with advantageous economic relations, fraud or misrepresentation? If you have a large number of employees who use your social media sites, is there someone monitoring the posted content and comments to catch any potential problems before they give rise to legal disputes?

• Criminal Activity. An article in Britain’s Daily Mail[8] last December points to the exponential increase in crimes linked with social media. The alarming headline, “Facecrook: As offences linked to social networking sites increase 7,000%, the terrifying truth about criminals targeting your home” may strike you as a tad sensationalist but the truth behind it is that criminal activity is growing rapidly through social media, as it has on the Internet generally, and they are not just targeting individuals but are also successfully penetrating corporate and government social media accounts. Amidst a lot of scary vignettes, the article does manage one or two grounded moments and points out that “all the evidence suggests that while the public isn’t growing any more internet savvy, the criminals are”. Organisations operating social media accounts must be aware of security issues that may provide criminals with access to sensitive information whether those criminals are external to the organisation or, possibly, internal. Social networking activities can serve as a catalyst for offline criminal activities and charges and your social media policy needs to incorporate security measures that minimise your exposure to criminal risk.
• Employment Practices. This is a particularly topical area and one that is especially relevant to those in your organisation responsible for recruitment or human resource management. It has become more commonplace for recruiters to check candidate’s social media profiles during the recruitment process or to dismiss employees for statements found on their social media sites. This has given rise to a spate of court cases in Australia, Europe and the USA that revolve around privacy and equal rights issues. In Germany[9] the government has decided on placing restrictions on the use of sites such as Facebook for recruitment and other governments are looking closely at how ‘private’ information is used by corporations. Do you know, for example, if, under our current labour laws, you have the right to dismiss an employee for posting personal or slanderous comments about you or your organisation on a social media site? This is not yet a clear-cut area. Lawmakers are grappling with all of the privacy, IP and related issues arising out of this new technological world that has spawned social media. It is still not always clear whether existing laws cover social media cases or not (see the article from Human Capital Magazine, ‘Recent social media cases provide guidance, not certainty’, for a more in-depth look at this point[10]). Your social media policy needs to address the potential legal
  consequences of taking social networking information into account when making hiring or firing decisions.

Covering these points satisfactorily would give you the backbone of your social media policy. However, there is a lot more to consider in the shaping or a robust policy than this. For example, what limits do you place on the use of User Generated Content (UGC – video, audio images etc), is UGC subject to validation from a ‘gatekeeper’ before posting to your site? Does your social media policy allow for an open and self-monitored access for your employees to your social media sites or is there administrative control over who posts and what is posted? Are ‘outside’ comments on posts allowed (from customers and clients for example), and if they are, how are they being handled and responded to (have a look at the story of Heather Armstrong calling out Whirlpool through Twitter[11] to see how your clients can also use social media effectively to shake up your organisation).

A good starting point would be to review the social media policies of other organisations and see what they have covered. You can download social media policy documents for some high-profile brand organisations such as Coca-Cola, Kodak, Cisco and Intel from here: http://windmillnetworking.com/2010/08/19/why-your-company-needs-a-social-media-policy-and-14-corporate-social-media-policy-examples/

Until tomorrow…

What do you get when you fall in love?
You only get lies and pain and sorrow
So for at least until tomorrow
I’ll never fall in love again
I’ll never fall in love again

Using social media within your organisation offers a powerful new set of tools to communicate your corporate message, build your brand, generate trust with your clients and broaden your marketing spread. No wonder we’ve all fallen in love with it. However, as we’ve seen, with love there has come a good measure of ‘lies and pain and sorrow’ in our use of social media. They are not, of course, going to stop us – it’s just too good to walk away from. To ensure that we build a strong, healthy and beneficial relationship with social media what we must do is to ensure that as individuals we understand that ‘privacy’ is not quite what it used to be and we must exercise caution when posting to social media sites and, as organisations, we do not enter into a relationship with social media without having a clear, well-constructed, and comprehensive social media policy. If we do that we can carry on the love affair.

[1] 7PM Report, http://7pmproject.com.au/3155.htm

[2] Bank worker lost redundancy payout over Facebook comment, The Daily Telegraph (UK), http://www.telegraph.co.uk/news/8163116/Bank-worker-lost-redundancy-payout-over-Facebook-comment.html

[3] Nielson Community Engine, http://www.communityengine.com/australian-organisations-rush-to-embrace-social-media

[4] Nielson Community Engine, http://www.communityengine.com/53-percent-of-businesses-feel-they-lack-knowledge-or-expertise-to-implement-social-media-activities

[5] Adapted from: Legal Issues in Social Networking, Kathryn L. Ossian, Institute of Continuing Legal Education.

[6] Facebook Website, Terms of Service, http://www.facebook.com/terms.php

[7] Defamation cases multiply from Facebook, Twitter, The Sunday Mail (Qld). http://www.couriermail.com.au/news/defamation-cases-multiply-from-facebook-twitter/story-fn5kfsdd-1225925849346

[8] Facecrook, The Daily Mail Online, 31st December 2010, http://www.dailymail.co.uk/news/article-1340024/Facecrook-As-offences-linked-social-networking-sites-increase-7-000–terrifying-truth-criminals-targeting-home.html

[9] German Law Would Limit Facebook’s Use in Hiring – NYTimes.com, http://www.nytimes.com/2010/08/26/business/global/26fbook.html?nl=technology&emc=techupdateema1

[10] Human Capital Magazine, ‘Recent social media cases provide guidance, not certainty’ http://www.hcamag.com/news/recent-social-media-cases-provide-guidance-not-certainty/61326

[11] A Twitterati Calls Out Whirlpool – Forbes.com, http://www.forbes.com/2009/09/02/twitter-dooce-maytag-markets-equities-whirlpool.html

* This article first published in the AFG Venture Groups newsletter