A few seconds - that’s all it takes. Whether done with malice or completely innocently, once you post something online that crosses a line you might be staring at the end of your career or your business. This is terrifying, yet happens all the time. It would appear that few people understand the risks and obligations with publishing their views online.

It’s not that clear-cut either. Laws around social media are still slowly being formed, plus there is the question of how far we should legislate free speech. Ultimately the best way forward is for individuals to realise their own responsibilities.

Vodacom Now! wanted to learn more, so we sat down with emerging technology law expert Nerushka Bowan and got some advice on the do’s and don’ts of social media. You can find out more about Nerushka at www.nerushkabowan.com.

What shouldn’t a company say on social media? Is there a good rule of thumb for this?

It depends what your goal is. Some companies enjoy pushing boundaries as this increases publicity and makes them go viral on social media. However, most companies are more risk-averse and wouldn’t want to attract this type of viral attention. Companies should stay away from controversial topics that they are not experts in. Social media (especially Twitter these days) has become known for its controversial accounts that are ready to pounce on any social media mishaps.

What are some basic legal guidelines for social media, particularly for small companies that can’t afford legal protection? 

When you post on social media you become the author, editor and publisher of your content and are liable. It doesn’t matter if your settings are on private or if you have a small number of followers. You only need to publish a defamatory statement to one other person to get into trouble. Stating the truth and facts about someone is not a defence against defamation. If your statement brings harm to someone else’s reputation, even if it is true, you could still end up paying them damages for defaming their reputation. The defence works if the statement was both true and in the public interest when published.

Every company should have a social media policy. But what is such a policy? What would it contain?

The policy assists in getting the company to think about its online presence and what behaviour it expects from its employees, and itself as a brand. It also assists when employees violate this expectation and you want to take action against them. However, a policy is not going to solve your problems if your team doesn’t receive the appropriate social media training. Employees who are trained in the do’s and don’ts of social media become the best brand ambassadors or your organisation.

Can a company get into trouble for what their employees write on social media? Does it matter if the account is a personal account belonging to the employee? Should companies ask employees to add some kind of indemnity statement to their profile? 

'Indemnities' on an employees’ profile mean nothing. It is very easy to find out where people work and to link someone’s social media account with their employer. The immediate risk is reputational damage to the organisation’s brand, and that is why you often see employers release a statement to distance themselves from the employee’s actions and statement, often followed by disciplinary actions. An employer can be held accountable for the employee’s actions where the action is closely related to the person’s job. This concept is called vicarious liability in law. The employer can be vicariously liable for the employee’s actions. This might result in cases where CEOs make social media statements or where the digital marketer responsible for handling the corporate accounts makes a mistake. 

If a company employs a third party to maintain its social media presence, where do the responsibilities lie in terms of libel and brand damage?

It is important to have a contract discussing these liabilities as ultimately the organisation would be responsible for its brand management. If there was wrong-doing on the part of the third party, the company would be able to take action, but it would be a lot easier to prove with the appropriate agreement in place. Social media can make or break your brand and companies should ensure that those in control of their online presence will do so with the appropriate checks and balances in place. For example, approval of certain content before it posted.

If something goes wrong, such as a bad post, what should a company do?

It depends on the post. There are many people that specialize in reputation management in these scenarios. What a company does in those moments following an incident can go a long way. If it was an employee’s wrongdoing, a company can release a statement distancing themselves and take appropriate disciplinary action. If it was a corporate post, the company can apologise for any harm caused (where appropriate, however, an apology may also be used as evidence of an admission if it ends up in court). Again, there is no rule of thumb of what to do generally, but getting the right advice can assist in handling the situation swiftly without harming the brand.

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