Australia: To "Like" or not to "Like": Businesses and Social Media

EBIT (Emerging Business, Innovation and Tax)
This article is part of a series: Click Spam (not the canned variety): How can you comply? for the previous article.

Social media represents significant marketing benefits to businesses; offering potentially vast exposure with minimal overhead. However, like any investment, returns will often carry risk. Gone are the days when a business' social media concerns related to the how productivity was affected through its employee's use of Facebook and Twitter at work. Now, more and more businesses are recognising the potential benefits in integrating with social media. This increased use also carries a variety of separate legal issues that businesses must address.

Integrating social media into websites

Most internet users will have had some exposure to social media. Whether as a member of a social media site, such as Facebook or LinkedIn, or via features available on websites they have visited. It is not uncommon for online newspapers to include an option for readers to "Share" or "Tweet" the content on Facebook, Twitter, LinkedIn and other social media sites. Similarly, many businesses offer customers a chance to "Like" their page or product, through Facebook. However, there are many other features that may be incorporated into your website. Before incorporating any features into your website, you must turn your mind to some critical issues.

How do you intend to use the social media feature?

The issues relevant to incorporating social media in your website will vary depending on what social media features you intend to include. For example, are you providing a link to the social media site? Will you incorporate the logo for that site? Are you incorporating an enhanced feature, such as a "Like" button or an activity feed? Will you use an API? Depending on the degree of integration with the site, use of such features will generally be governed by specific terms for each feature. Such terms of use differ between social media providers.

Most social media providers publish their terms of use on their sites. As these terms are prepared by the social media providers is it not surprising that they generally favour the social media provider. Businesses must carefully review these terms to ensure that their intended use of the social media is compliant with the terms. The business will need to assess whether its proposed integration with the social media site could bring the business within any of the restrictions contained in the terms.

Importantly, for many of the social media sites, there are several documents that comprise the terms of use for the site. For example, 3 main sets of terms apply to the use of Facebook: the Developer Policies and Principles, the Statement of Rights and Responsibilities and the Advertising Guidelines. There are further guidelines as to the use of the Facebook logo. Businesses must ensure that they review all components of the terms.

Do the terms allow you to use the feature as intended?

Where you are planning on incorporating social media into your website, the relevant terms of use must be considered to identify any limitations on the proposed use of the features and any restrictions on what content can be included on the social media site. For example, many social media providers restrict how their features can be used for advertising. Similarly, there are often technical limitations concerning usage limits and syndication functions. Therefore, before incorporating social media into your site, you must ensure that the feature is right for what you want to do.

How much?

Perhaps one of the main attractions to incorporating social media into your site is that such use is generally free. However, some sites provide for circumstances where payment may be required while others provide a warning that use of their sites may not always remain free.

Can the terms change?

These terms are subject to change at the discretion of the social network provider. Changes can occur very quickly and frequently (for example, weekly) and there is no limitation on the extent of any changes. This represents a risk to businesses that include social media in their websites, as a change to the terms could cause your investment in using the application to be lost. Therefore, businesses must be vigilant in monitoring the changes and ensuring continued compliance with the amended terms. Businesses must also evaluate how easily they can cease using the social media feature in the event that the termschange in a manner that is adverse to the business.

Can you negotiate a separate licence with the social media provider?

Where the social media providers' terms prevent your intended use of the relevant feature, you may need to seek a separate agreement with the provider to allow your proposed use. Where a separate licence is negotiated, you will not be limited to the general terms and can more specifically address the manner that you intend to use the social media features. You may also consider this approach where the risk associated with a change to the terms is high. However, ultimately there is no obligation on the social media provider to enter into such an agreement.

Where to from here?

If your business is contemplating incorporating social media into its websites, ensure that you review the social media providers' terms and, where in doubt, seek legal advice on how those terms will apply to you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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This article is part of a series: Click Spam (not the canned variety): How can you comply? for the previous article.
This article is part of a series: Click Bamford – Where to from here? for the next article.
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