Bowen Buchbinder Vilensky

The Five Legal Blackspots of Social Media.

by Leslie Buchbinder
WA Business News, February 2012

Many people think of online activity as an alternative reality where the normal rules that apply to the bricks and mortar world, don’t apply. That’s never been the case. Although it has taken the legal world a while to play catch-up, in recent months, what happens online has increasingly becoming the focus of legal action around the world. Stand by for a lot more of it in time to come. 

What you say in social media forums like Facebook, Linked In, YouTube and Twitter can be very important. Much more important than, for example, a single email or letter. Why? Because it can reach so many more people, is downloadable and therefore remains as a permanent record, and has the potential to go viral. 

In legal terms, you might say that what appears in the social media is like publishing your views in a mass market newspaper. You can’t let rip with whatever enters your mind in the belief that there will be no repercussions. On the contrary, those repercussions can be very serious indeed. 

As the social media world becomes a place we all spend more and more time, it is inevitable that we will need to be more careful, not just about what we say, but how we say it and who we say it to. 

In particular, there are five legal black spots I’d urge you seriously to avoid. 

1. Restraint of trade. 

Let’s say you’re an account manager with a company and have a number of clients to whom you are Linked In. You move to a better job with a rival firm and post an online status update to announce the good news. If your employment contract with your previous employer specifically prevents you from contacting clients should you leave the company - a restraint of trade clause - your status update might have just violated this agreement. If so, it is open to your former employer to sue you for damages suffered by it by you breaking the restraint of trade clause in your contract. 

Advice: If your employment contract specifically prevents you from contacting clients after you leave, remove them from your contact list before posting any status updates about the move. 

2. Client confidentiality or passing on privileged information. 

Okay, so many people talk over the barbie about business deals they’re working on. But don’t try the same thing online. Even if you don’t name names, if someone was able to work out what deal you are referring to – perhaps because of your connections, or some other inference – and if this information could be commercially useful, you could be found guilty of breaking client confidentiality or disclosing ‘privileged’ or confidential information. 

Advice: Just don’t go there. Certainly don’t try to show you’re ‘in the know’ about something – it could backfire badly. 

3. Industrial relations/Discrimination. 

You throw a birthday party at your house and invite some friends along from work. During the course of the evening, a couple of them get quite amorous. Next day on Facebook or Twitter or some other internet social media facility there are a few adverse or disparaging comments about what they got up to in your pool room, which are discussed in the work place. Even though the event didn’t happen at work or during office hours, the situation could turn very ugly if the woman involved subsequently claims that the social media comments are belittling and that she is now being discriminated against in some way at work because of her gender. 

Advice: Social media may blur the boundaries about what is work and what is personal, but writing about work colleagues on Facebook is like make announcements on every noticeboard in the company – take care! 

4. Defamation. 

You might think twice if you were phoned by a journalist from a major newspaper and asked for your views on a particular person or company. Instead of saying, ‘He’s a useless idiot who has no idea how to market property,’ you might say something more along the lines, ‘We were very disappointed that he wasn’t able to sell our house.’ The second is acceptable criticism. The first is defamation, and you can be taken to court for writing sentences like that in social media, as surely as if you had been quoted in a mainstream newspaper. 

Advice: You can get the same message across in different ways. Take care how you say it. 

5. Brand Damage. 

It may seem like a bit of fun to take the logo of a company that’s been in the news for the wrong reasons, present it in a visually disparaging way, perhaps with a jokey sound track, and put it up on YouTube. But this cpuld well amount to brand damage and you can get into legal trouble over it. 

Advice: Your bit of harmless fun may be a serious legal affront to someone else. Again, just do not go there. 

Disclaimer: the advice in this article is general in nature only and ought not be relied on for any specific circumstances. Readers should seek further legal advice in relation to specific online matters or issues. 

Leslie Buchbinder is a Director of Bowen Buchbinder Vilensky, 
www.bbvlegal.com.au

Leslie Buchbinder

Leslie Buchbinder
Director