In our related article, ‘Why Employers Need a Social Media Policy‘, we highlighted why having a policy is important for effectively managing the risks associated with your employees using social media in your workplace.
We also understand that managing social media internally is not always viable for small-to-medium businesses, which is why so many of them choose to outsource control of their social media to third parties. This article discusses the dangers involved in outsourcing social media and the benefits of having a service-level agreement (SLA) in place that takes into consideration all the associated legal risks.
What are the Dangers?
Recent decisions by the Advertising Standards Bureau (ASB) mean that Australian companies could be liable for breaching advertising standards as a result of public comments and content on their company’s Facebook page… no matter who is responsible for putting it there. Of course, in the future this could extend to other social media channels (like Twitter). What does this mean?
If a company is aware of inappropriate content being displayed and posted on their Facebook page and they do not immediately take steps to remove it, they are now deemed to be responsible for that content and will bear the consequences if it is misleading, defamatory, indecent, or otherwise in breach of the Law.
Digital media agencies and social media consultants might understand social media from a marketing perspective, but may not be knowledgeable about the laws that govern its usage in Australia. This also relates to what is and isn’t appropriate in the eyes of the law. Recently Carlton United Breweries outsourced social media control of their VB Facebook page to an external party who was later found to have breached advertising standards. If one of Australia’s biggest brands working with one of the top advertising agencies can get it wrong, so can any other business (small or large).
What is Appropriate?
Comments and posts on social media that seem positive will nonetheless breach advertising standards if they are false.
For example, where a fan or employee posts a positive message about a new drug that has saved someone’s life, this could breach the advertising standards because without the proper proof to back up the claim the company would be seen to be engaging in misleading or deceptive conduct.
What is the Solution?
To ensure the associated legal risks are understood, and are appropriately allocated, it is recommended that all businesses outsourcing control of their social media consider putting a SLA in place between themselves and the third party controlling their social media. The SLA should take into consideration all the legal risks and clearly outline what is and isn’t appropriate, as well as defined processes and guidelines for handling the removal of posts and content.
In addition, the SLA should outline who is ultimately liable for the consequences of any breaches. For example, if a company provides their third party “social media controller” with information that they believe is factual, when in fact it is not, and they authorise the controller to disseminate that information on Facebook, then the company would be at fault, not the controller.
For more information about social media outsourcing, social media policies or service-level agreements please contact our Business Law Team.