International traders typically use social media to communicate with their customers, raise their company’s profile and showcase their products. In the future, it is likely that businesses will start to trade on these platforms: Twitter is currently testing a ‘buy’ button in the US which will enable traders to sell directly from the site. So how do organisations ensure that they don’t inadvertently fall foul of the law when using this technology? In this post I discuss the law, when traders should apply a bit of common sense, and, most importantly, when they should take legal advice.
‘The vast majority of people who use the social media are like society. [They] are decent, intelligent, inspiring people. The problem comes with a small minority, as in society, who spoil it for everyone else."
So noted criminal barrister, John Cooper QC, when giving evidence to a Lords select committee inquiry into social media earlier this summer.
The report noted that this widespread technology is ‘simply a platform for human beings to behave or misbehave’.
In other words, when users behave badly, don’t blame the service providers, blame the user.
And yet for many people this sharing technology is still the villainous messenger that needs to be shot. The conduit that can do no good. Many individuals and businesses still believe that social media platforms are toxic; not helped, I would add, by news reports that surface from time to time—my favourite being the story that claimed Facebook could raise an individual’s cancer risk . Indeed.
Anybody who is on social media knows that this is utter sensationalism. These platforms have revolutionised the way in which businesses communicate with customers (and others) but that’s not to say that their use is without legal risk.
So what do you need to know from a legal point of view?
To be fair, a lot of law in this area is common sense, certainly in terms of the criminal law.
You wouldn’t, for example, send a letter to your competitor that contains an unsavoury threat: (i) because you probably are a jolly nice person, and (ii) you were brought up properly (I hope). Well, the same goes for a tweet or a LinkedIn post. For most people, the fact that it is an offence under section 1 of the Malicious Communications Act 1988 (in England and Wales) is neither here nor there. Any savvy businessperson knows that they would suffer some pretty awful PR consequences if such a tweet was to ‘go viral’.
What about the non-criminal law? This is where it might get a tad trickier. Do you post third party content? Who owns and controls your content? These are all matters that need to be considered carefully.
That said, there is no need to panic. Again, many laws in this area are to a large degree a matter of applying common sense (yes, there’s that term again).
It is rarely good marketing practice, for example, to disparage a competitor. From a marketing perspective not only can this look mean-spirited and unprofessional, in some countries it may be unlawful under competition law or laws relating to comparative advertising. There is no point putting yourself at risk legally and losing customers just to ‘score points’ (and that’s without really mentioning the potential for a defamation claim).
In essence, businesses need to be aware that it is almost impossible to know whether every tweet or post is 100% legal in every single jurisdiction in the world. For many organisations, aiming for absolute compliance in this respect is unrealistic and unlikely to be cost-effective (even though it pains me as a lawyer to admit this). That said, this approach may not be sensible for heavily regulated sectors such as alcohol, tobacco, gambling or financial services.
In some areas there is room for manoeuvre. In others, you may need to tread very carefully indeed. Work out what countries you are marketing too and check those laws carefully with local lawyers. Canada has strict new anti-spam laws. If you are selling products there, do you know how to comply with them? What about if you are selling widgets in the UAE? Did you know that it is illegal to tag other users without their consent?
A good lawyer can analyse your social media needs and help you adopt robust systems and processes to minimise the risks. Ideally, this should be done alongside your PR function so that these dovetail neatly with one another. Then, once you have a social media policy, apply it. Tell your staff about it. Train them.
For too long the perception of the difficulties faced when using social media has been much worse that the reality—like how most people think that crime is increasing even though, according the Crime Survey for England and Wales, it has been falling for years. The technology does present challenges but they are surmountable.
Above all, it can be fun. So get out there, enjoy it, keep your customers happy and get yourself some more business.
Paul Caddy is a solicitor and legal journalist at Lexis®PSL Commercial who has worked with UKTI through the UK Advisory Network.
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