While a typical definition of “social media” might refer to internet-based applications which facilitate the creation and exchange of user-generated content, arguably social media in a broader sense has existed for hundreds of years.
For example, Dr. Martin Luther’s letter of “95 theses” that he nailed to a church door in 1517 led to a flurry of user-generated content (in the form of pamphlets) and an extraordinary public engagement in the religious debate of that time. Luther’s letter was distributed widely, far beyond his own expectations in modern terms we might say it “went viral.”
150 years later members of the “Republic of Letters” transcended national boundaries in their exchange of ideas and intellectual debate. Significantly, this exchange involved social networks of a kind we readily recognise today circles of friends, friends of friends, connections, and social intercourse in the guise of entertainment and enlightenment.
The point here is that, although we may think of social media as something new, from a legal perspective it is merely a modern extension of age old community and social intercourse. Accordingly, age old legal concepts such as copyright, free speech, defamation, confidentiality and duty of care apply to modern social media, and need to be considered by Australian businesses when drafting a social media policy.
Moreover, engagement in social media involves a catalogue of age old risks, for example exposure to criminal behaviours, misrepresentation, breach of privacy, and simple “bad luck.” It’s common for businesses to overlook many of these social media laws when drafting a policy.
That said, modern social media is a doorway to new ways of conducting business and interacting with others. Consequently the law has evolved to address issues like forming contracts via social media, the service of legal documents via social media, improved protection of copyright interests, and determining appropriate consequences for “bad behaviour” (eg, criticising one’s employer online). As a result of this constant evolution, it is becoming increasingly important for businesses, and employees, to engage in legal social media practices.
If you operate a social media website, or use social media tools to promote your business, you need to give careful consideration to relevant risks. As evidenced by the recent arrest of executives of the “Megaupload” website, playing footloose with copyright can have very real (non-virtual!) consequences (and even that case is still ongoing).
Similarly, accidentally revealing your clients’ private information to the world may leave you facing damages proceedings. Make sure you get the best advice you can from law firms that understand social media both technical and legal advice to avoid these kinds of situations.
While having a “social media lawyer” review the policy before it is implemented might sound like overkill for small businesses, doing this could alleviate any future issues that arise directly as a result of the business and it’s employees using social media.