Social media offers unlimited opportunities, but professional communicators need effective risk analysis strategies to assess potential legal hazards when posting or hosting content.

A stakeholder-oriented approach to risk minimisation can help social media managers and moderators anticipate, identify, address and balance these dangers and opportunities.

The consequences of poor analysis of legal risks in social media can be dire. Social media managers can face jail terms or hefty fines under the criminal law, court orders to pay damages or to abandon marketing campaigns under civil actions, or regulatory decisions that could damage their brand with their customers and industries.

It is vital that organisations have strategies in place to assess both their general exposure to social media legal risks and specific hazards related to particular laws such as defamation, breach of copyright or privacy intrusion.

Of course, social media legal risk is on a spectrum – with no organisation having zero risk in this space. Any social media activity – or even inaction – can present legal dangers.

In our new book, colleague Susan Grantham and I have identified ten key questions an organisation might ask in establishing its level of social media legal exposure:

  1. On what social media platforms does the organisation have a social media presence? [Risks can vary across platforms and the type of use].
  2. Where is the organisation based and where does it have a presence? [We all publish globally in social media and legal issues might arise anywhere, but organisations need to focus primarily on jurisdictions where they are based and where they have a commercial presence.]
  3. How effectively and frequently are the social media sites moderated? [Routine and efficient moderation of third party comments is a key factor in minimizing legal risk, as I explained in a previous blog on the legal risks of Facebook comments.
  4. What personnel have responsibility for posting and moderation? [Organisations need a clear designation and demarcation of social media responsibilities.]
  5. What level of social media experience and legal knowledge do those personnel have? [Social media legal risk analysis should not be left to juniors. It requires a basic level of expertise and ongoing training.]
  6. What level of social media experience and legal knowledge do their supervisors have? [Senior staff need enough expertise to be able to assess whether legal advice is needed when an issue or threat arises.]
  7. What is the level of access to internal or external legal advice within the organisation? [Part of crisis communication planning is to have relationships already in place with lawyers.]
  8. Does the organisation’s social media policy cover acceptable use of social media by employees? [The lessons from unfair dismissal cases after social media misuse are that organisations must have reasonable and updated social media policies communicated to staff, underscored by training.]
  9. Does the social media policy include a legal escalation process? [Organisations need clearly designated legal escalation/upward referral chains of command.]
  10. To what extent do the organisation’s insurance policies cover the legal consequences of social media? [Professional indemnity/liability insurance needs to accommodate costs associated with legal breaches and defences.]

Of course, many other dynamics can arise – particularly in highly regulated industries like pharmaceuticals and securities where special protocols govern social media communications.

In addition to the general appraisal, we offer specific social media legal risk analyses adapted to each of the main topic areas of defamation, privacy, contempt, employment law, consumer and corporate law, and intellectual property. They involve tailored answers to these five key questions:

  1. Identifying the potential (or existing) legal problem
  2. Reviewing the areas of the law involved
  3. Projecting the possible consequences for stakeholders
  4. Seeking advice / referring upward
  5. Publishing / amending / deleting / correcting / apologising

The lightning pace of social media publishing and commentary should not stop effective reflection and legal risk analysis which can pay off substantially by protecting the reputation of brands, building the confidence and loyalty of stakeholders, and by minimising the costs of litigation.

Mark Pearson is Professor of Journalism and Social Media at Griffith University and is a journalism and media law educator, blogger and author. He has written and edited for The Australian and has been published internationally in a range of outlets including the Wall Street Journal.  His fields of expertise are media (and social media) law and mindful journalism ethical practice. He has written or edited eleven books, including six editions of Australia’s leading journalism law text The Journalist's Guide to Media Law (with Mark Polden, Allen & Unwin, 2019), Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012), and Mindful Journalism and News Ethics in the Digital Era (with Shelton A. Gunaratne and Sugath Senarath, Routledge, 2015).

Griffith Professional Course

Mark and colleague Susan Grantham teach these strategies in the online graduate certificate course Social Media Law and Risk Management. Their book, Social Media Risk and the Law: A Guide for Global Communicators – is in press for publication by Routledge in September 2021.

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