The Wild West of Social Media

11 April 2019

It is becoming increasingly clear with the continual evolution of the internet and social media, a reputation that has been carefully built up over the years can be seriously (and sometimes irreparably) damaged in a matter of seconds. Whilst not necessarily terminal to his personal reputation, Elon Musk’s infamous tweet in September last year referring to him allegedly having secured funding to take Tesla private resulted in both him and the company paying a fine of $20 million to the SEC. There was even a suggestion that Musk had committed a contempt of court by later allegedly breaching one of the SEC’s conditions of settlement, namely that he seek pre-approval from the company before making any public statements that might affect Tesla’s share price, a matter shortly being considered by the courts in New York.

There can be no doubt that social media is no longer the ‘wild west’ of the legal world, as both individuals and companies are increasingly taking action to challenge, and sometimes even litigate, inaccurate or defamatory allegations that have been published. Only last month for example, the philosopher and author A.C. Grayling was awarded £20,000 of damages following publication of an unfounded allegation on Twitter that he was in possession of child pornography. Whilst undoubtedly a stark example (and an obviously damaging allegation), it is an indication of the serious approach the courts are now taking to social media publications, even when the publisher has a relatively low number of followers (in this case 8,000). In a separate case, the Supreme Court handed down its judgment last week in a libel dispute between two individuals on Facebook, which provides guidance on the approach the courts will take to allegations made on social media.

Almost all companies will have an online social media presence of some sort, which is often manned by relatively junior employees, who may not be aware that they are acting as publishers in the eyes of the law. This concern is particularly acute when those individuals are dealing with complaints or criticisms from customers and the temptation to send a sharp and insensitive response is high. Ultimately it is likely to be the business itself that would be held liable for the social media activity of its employees when things go wrong.

Not having clear guidance and training in place for those employees responsible for publishing social media content online is a serious risk. This is something that companies should be considering alongside systems and controls to prevent / mitigate a data breach.

The following steps can be taken to minimise such risks:

1. Ensure that there is a clear internal line of responsibility in place so that social media content is connected and coherent;

2. If sensitive information is being published then ensure that there are systems in place to check for accuracy and compliance with any external regulations;

3. Provide training for staff on key areas of relevance to the business so that all content is “on message”, and in particular so that they are able to identify any issues that may be of legal concern, and how those risks can be minimised; and

4. Have appropriate procedures in place to monitor social media postings and escalate concerns where appropriate.

As well as having a clear and coherent strategy in place to minimise the risks on social media from your own content, it is also important to have an offensive plan in place if your company or employees are attacked or defamed on social media. This would include regularly monitoring both social media pages (including those of your competitors), as well as industry focused publications, and knowing where to get the PR and legal support should you need it. It is only with such a joined up approach that you will be able to truly maximise the advantage and minimise the risk posed by social media.

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About the Author

Simon Brown

Associate

With a broad range of experience in reputation management, including defamation, privacy and data protection matters, Simon regularly acts for high-net worth individuals and international organisations.

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