Advantage and legal risk of social media

Law Society council member Peter Wright warns of dangers when businesses interact on social media


Peter Wright

There has been a stampede in recent years for businesses to engage significantly on social media with their potential markets. No longer is it enough to advertise in traditional forms of media – a presence on Facebook, Twitter, WhatsApp or Snapchat is seen as essential to demonstrate engagement with existing and future customers.

Massive numbers of users from both a business and private context bring with them their own attendant legal risks. Social media users have found themselves mired in legal action as a result of threatening, abusive or harassing behaviour, breach of copyright, trademark infringement and even breaching the Data Protection Act, while others have been dismissed from employment or seen their businesses suffer as a result of statements made online.

HMV faced an online backlash after they took the decision to make a large proportion of their head office staff redundant after the organisation went into administration, not realising that among those receiving their P45s that day was their Twitter account operator, who took to posting live updates on discontent in the office that day, including the marketing manager frantically asking: “How do I take down Twitter?” He was the marketing manager – he really should have known both how to log into his organisation’s social media account and who was updating it on a daily basis.

Social media users have found themselves mired in legal action

Social media account security has been a significant issue, with Burger King having their Twitter account hacked by an attacker with a sense of humour who posted numerous updates about McDonald’s products and services, while changing the Twitter profile picture to an image of the competitor’s famous “golden arches”.

Social media is all about users interacting and exchanging opinions and views online, and the issue of defamation has frequently been raised as a result. A dental practice was upset about the 1-star review one of their patients posted on the online comparison and feedback site Yelp. After contacting the patient and asking for the review to be amended or removed, the patient refused, resulting in the practice making a claim for defamation valued at ÂŁ125,000 in lost business and costs.

Meanwhile, guests at a hotel in Blackpool were shocked to see their credit card was debited a sizeable fee – indeed a bigger fee than the original cost of their hotel stay – after posting a bad review of the hotel online. Widespread publicity of the hotel, along with legal advice that having a clause in their terms and conditions alleging such a fee would be debited from account details retained following departure from the hotel, might be both unfair and unenforceable, led to the fee being refunded.

However, the number of clients in the service sector who state that unfair and unwarranted complaints are being made about their services online suggests the issue of unfair online customer feedback harming a business continues to grow in importance.

It is not surprising, given these well publicised risks, that many businesses have been wary of engaging on social media. Indeed lawyers are frequently put off from engaging in social media for the same reasons, and legal advice and training on the legal issues surrounding the use of social media is not plentifully available as a result.

One way that lawyers in the UK have engaged online is through the Law Society’s #SolicitorHour initiative, which encourages lawyers from a wide range of practice areas to engage on Twitter between 1pm and 2pm every Tuesday and Thursday, and engage with the potential consumers of legal services who are out there online.

There is clearly a business advantage in engaging with the market online, but the clear risks make the business case for organisations having clear policies and governance in place, regulating how they interact online, unanswerable.