While a typical definition of "social media" might
refer to internet-based applications which facilitate the creation
and exchange of user-generated content, arguably social media in a
broader sense has existed for hundreds of years.
For example, Dr. Martin Luther's letter of "95
theses" that he nailed to a church door in 1517 led
to a flurry of user-generated content (in the form of pamphlets)
and an extraordinary public engagement in the religious debate of
that time. Luther's letter was distributed widely, far beyond
his own expectations - in modern terms we might say it "went
150 years later members of the "Republic of
Letters" transcended national boundaries in their
exchange of ideas and intellectual debate. Significantly, this
exchange involved social networks of a kind we readily recognise
today - circles of friends, friends of friends, connections, and
social intercourse in the guise of entertainment and
The point here is that, although we may think of social media as
something new, from a legal perspective it is merely a modern
extension of age old community and social intercourse. Accordingly,
age old legal concepts such as copyright, free speech, defamation,
confidentiality and duty of care apply to modern social media, and
need to be considered by Australian businesses when drafting a
social media policy.
Moreover, engagement in social media involves a catalogue of age
old risks, for example exposure to criminal behaviours,
misrepresentation, breach of privacy, and simple "bad
luck." It's common for businesses to overlook many of
these social media laws when drafting a
That said, modern social media is a doorway to new ways of
conducting business and interacting with others. Consequently the
law has evolved to address issues like forming contracts via social
media, the service of legal documents via social media, improved
protection of copyright interests, and determining appropriate
consequences for "bad behaviour" (eg, criticising
one's employer online). As a result of this constant evolution,
it is becoming increasingly important for businesses, and
employees, to engage in legal social media
If you operate a social media website, or use social media tools
to promote your business, you need to give careful consideration to
relevant risks. As evidenced by the recent arrest of executives of
the "Megaupload" website, playing footloose with
copyright can have very real (non-virtual!) consequences
(and even that case is still ongoing).
Similarly, accidentally revealing your clients' private
information to the world may leave you facing damages proceedings.
Make sure you get the best advice you can from law firms that
understand social media - both technical and legal advice - to
avoid these kinds of situations.
While having a "social media lawyer"
review the policy before it is implemented might sound like
overkill for small businesses, doing this could alleviate any
future issues that arise directly as a result of the business and
it's employees using social media.
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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