Social media case review: real world examples of how social media use can result in legal risk

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Summary: We have summarised 16 cases that hinge on issues that are social-media risks. They include unfair dismissal cases, and cases that illustrate broader points. These are old risks in new forms. Social-media risk is less exotic than it may sound, but it’s all in the details. The laws of defamation, use of trade marks, and conditions of employment are all well established; they have social-media risk aspects that may not be immediately apparent.

You should read this if you manage your organisation’s social-media strategy or legal risk.

 

The 20-second summary

 

We have summarised 16 cases that hinge on issues that are social-media risks. They include employees’ unfair dismissal cases, and cases that illustrate broader points.

These are old risks in new forms. Social-media risk is less exotic than it may sound, but as ever it’s all in the details. The laws of defamation, use of trade marks, and conditions of employment are all well established but they have social-media risk aspects that may not be immediately apparent.

We have split the cases we reviewed into two areas:

 

1. Cases that concern employees. Clear policies and reasonable responses are the key to employment cases. We found that having a clear policy in place helps, but companies also have to show that they have explained the policy – and the consequences of breaching it – to all employees.

 

 

Employment tribunals can take a broad view of what constitutes a reasonable response, so before you dismiss an employee over a social-media incident take care to consider the impact of the incident, and the employee’s response and previous record.

 

2. Non-employee cases are the hidden part of the risk iceberg. Non-employment cases – particularly libel, intellectual property and database rights can have alarming cost consequences. Fines and damages can be substantial and litigation can be long running. For example, M&S and Interflora have been involved in litigation since 2008 over infringement of Interflora’s trade mark.

To help guide your response to social media incidents, review the linked social media crisis-management workflow and review our social media legal-risk matrix.

 

Social media cases that concern employees

 

A reasonable response is key but employers have to explain the consequences of breaching their social-media policy.

We looked at eight unfair-dismissal cases, and two cases that relate to ownership of contacts made during employment.

Half of the unfair-dismissal cases were upheld and half were rejected We found that the key factors were:

A clear social media and/or email policy. We found that having a policy in place wasn’t enough. The policy had to be well known and well understood. And in one case having a social-media policy in place wasn’t held to be enough because the consequences of breaching the policy hadn’t been clearly explained.

Whether dismissal was a “reasonable response”. A tribunal will take into account a range of factors when it considers whether dismissal was a reasonable response. Factors include the employee’s previous disciplinary record, whether the employee tried to remedy the problem and apologised, and the damage (financial or reputational) that the incident may have caused.

A thorough disciplinary process. As ever, if a company can prove that a thorough and consistent process was followed then the dismissal is more likely to be held to be fair.

To help guide your response to social media incidents, review the linked social media crisis-management workflow.

 

Non-employee social media cases are the hidden part of the risk iceberg

 

Case law illustrates how important it is for you to identify roles, responsibilities and risks and put in place processes to control the use of social media and minimise the risk of liability leading to financial loss and/or loss of reputation.

The key lessons which emerge from the case law are:

Identify who is a publisher of comments published via social media. The impact of allowing indiscriminate use of social media can be: liability for defamation, breach of privacy and data protection laws, infringements of third parties’ IP rights and damage to reputation.

Put in place guidance and rules. On appropriate use of social media by employees and make sure that the policy is understood by all users of social media. Bear in mind, however, that such rules are purely contractual between employer and employee and will not necessarily eliminate the risks.

Respond quickly and appropriately to complaints received. From third parties that their rights have been infringed through the use of social media. Consider publishing a “notice and take-down” policy and adhere to it. Importantly, ensure that the offending acts are not repeated, since this can lead to further liability being incurred (e.g. a defamatory statement which is repeated). If in doubt, remove the offensive content pending an investigation.

Make sure you are clear about the level of content moderation you want to do. And ensure that the policy is applied consistently. Remember that you are likely to be seen as in control of your own website, so you are likely to have to exercise a higher level of moderation of any UGC created by employees. Look out for fake profiles and brand-squatting in social media which make use of your brands and take appropriate action before they cause you damage.

To help guide your response to social media incidents, review the linked social media crisis-management workflow.

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