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Social media and the law, or when to watch your tweets

A hundred and forty characters. It's hard to imagine that so few letters, spaces and words could land you in hot water, but they can and they do.

With more and more people using social media for work, (not just Twitter but a whole host of platforms from video sharing sites to Facebook and blogs), it's really important to remember that you're essentially posting to the whole world, and that means there are rules you need to stick to.

Before social media really took off, telling people about your business was quite straightforward. You'd issue press releases when you had an announcement. You'd organise interviews with journalists. And you'd follow tried and tested ways to reach your audience.

It was all very regimented. Only press officers dealt with the media. Press releases went through legal reviews. It was much easier to keep the flow of information out of an organisation under control and to make sure it didn't fall foul of defamation and libel laws.

So what is defamation?

Well, it's something that causes or is likely to cause serious harm to the reputation of a claimant. That's legal-speak for the person or organisation you're writing about – although it's useful to know that the law states that harm to a body that trades for profit (i.e. a business) is not ‘serious harm' unless it has caused or is likely to cause serious financial loss.

When you're writing a press release or writing an article it's much easier to take a step back, take a minute and check that what you're drafting won't cause that serious reputational harm. But when you're dashing off a quick tweet, it's sometimes hard to remember to spell check, let alone think about all the legal implications your 140 characters might hold.

Where the liability lies

But surely someone who posts to just a few followers won't have the same liability as a daily newspaper? Judges in recent cases have decided that in fact the defamation / libel law applies in the same way to both social media and the wider media. That means a libellous tweet or Facebook post is just as serious as a newspaper article. The highest payment so far has been £90,000 for one tweet. And damages can be high even when the reach is low.

Where it gets tricky

So you just don't post libellous or defamatory statements. That's easy enough.

But it's actually not that simple. Commenting on a libellous article or post can be seen as a fresh action, that means you are accountable even if you're simply commenting on a libellous post that you didn't write. Comments that are left before yours can also affect how your comment is perceived.

Statutory defences

But don't despair. Defamation laws have always had a defence. So if you do find yourself in hot water, make sure you get proper legal advice. The main defences are:
  • Truth: if what you're saying is actually true.
  • Honest opinion: is what you've posted your opinion rather than your statement of ‘fact?' It must be clearly identifiable and based on facts you believe to be true.
  • Responsible publication on matters of public interest: this has to be based on facts and public interest is not the same as interesting to the public!
If you are found to be in the wrong, offering amends (the quicker and more sincere the better) is looked on favourably by the courts.

How to manage social media / defamation

Before it gets to this point though, there are things you can do to make sure you're in control of your social media. My personal favourite is making sure you have a social media strategy in place, and telling your staff about it (this way you protect yourself, but also know that all your social media activity ties into your overall communications objectives).

Make sure you:
  • Put in place social media strategies and communicate your organisation's policy.
  • Monitor comments about your organisation - confront all inaccuracies promptly and proportionately.
  • Regularly audit reputation and develop risk reduction strategies.
  • Protect confidential information.
To finish: social media checklist

Here are a few things to think about before you post to any social media site:
  • A tweet, etc. can be defamatory even when it is posted to a closed group.
  • If you retweet a libellous statement you can be sued.
  • If you post a link to another site you are liable for what is on that site.
  • If you draft a press release you (and anyone else who has contributed) are liable.
  • Adding ‘allegedly' before a statement does not stop you from being liable.
  • If you don't name someone , but your description of them means they are identifiable, your comments could be defamatory and you can be liable.
  • Using an alias doesn't protect you.

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