The marketing industry has quickly responded to social media by using specialist online reputation management agencies to banish critical articles or customer comments to the back pages of the Google search results. However, technology businesses should take proactive, preventative steps themselves to achieve two key goals – protecting their reputation and reducing their exposure to risk.
Engaging with customers through social media often means that user-generated content ("UGC") will appear on a business' website or social media page and could take any number of forms including text, still or moving images or sound clips.
User terms and conditions
The main concern for businesses arises when this content infringes rights or when it harms or threatens to harm the business or another organisation. To counter this, businesses should ensure that their user terms and conditions:
• Expressly prohibit illegal content
• Disclaim liability for any offensive or defamatory UGC
• Obtain appropriate licences or assignments for intellectual property (IP) rights
• Obtain consent to use any private personal information
• Obtain the appropriate warranties and indemnities from the users themselves
Defamation
Perhaps even more important is how a business reacts when such infringements do arise. Clearly set out "notice and take down" procedures can help to ensure that if third parties notify the business of objectionable content, it can be swiftly taken down.
Although businesses that inadvertently find themselves hosting defamatory material have some statutory protection (for example under the new Defamation (Operators of Websites) Regulations 2013), this may fall away if they do not take the appropriate steps once they receive a complaint.
The problem is of course inverted when a business itself becomes the object of defamatory material hosted on third party sites. Alongside any pursuit of the individual who posted the material (where possible), one of the first steps taken should be to identify the social media or website operator hosting the content and attempt to use the site's own notice and takedown mechanism.
If this approach fails, legal proceedings can be pursued, though businesses can take comfort in the fact that operators are increasingly keen to avoid implication through their own inaction.
Watch your employees
Employee interaction with social media, both in a personal capacity and on behalf of the business, is another area where management should exercise vigilance. Whilst this platform can help create a positive image for the business and act as a productive knowledge sharing hub and networking tool, employee conduct is not necessarily private, and individuals are often less reserved when voicing their opinions online.
Issues such as discrimination, loss of reputation, breach of confidence, invasion of privacy and infringement of third party rights are real concerns and can both directly and indirectly damage a business's reputation. As such, it is advisable for employers to remind employees of these dangers and set in place a pragmatic and enforceable online and social media policy, which:
• Sets out clear and realistic guidelines for social media use, both in and outside office hours
• Puts in place appropriate restrictions on the use of the company's IT resources, IP and confidential information
• Requires prompt response by employees to issues raised
• Makes clear the consequences of breaching the policy
Data Protection Act
Businesses should also be mindful of their obligations under the Data Protection Act 1998 when publishing content on their website and social media pages. In particular, are they complying with the privacy policy of the social media platform operator, and does this fit with the business' own privacy policy?
Online reputation management is something that all businesses, especially those in the technology sector, need to be proactive about. Educating employees and putting in place internal and external-facing policies will install greater legal and practical awareness, minimise risk and reduce exposure to complaints and potential legal proceedings.
Policies are only effective when properly implemented, so management should continually monitor the content of social media pages and the business' website to ensure compliance.
- Elaine O'Hare is an Associate at Stevens & Bolton and advises clients on all aspects of intellectual property, including copyright, trade marks and database rights. She also advises on defamation and internet and domain name issues as well as non-contentious matters, such as IP licensing.
- Henry Milas is a trainee solicitor in intellectual property practice at Stevens & Bolton. He has experience in various contentious and non-contentious matters, as well as some defamation work.
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