As social media becomes a part of our personal and professional lives, it can be easy to forget that behind all the tweets and Likes social media presents a potential legal minefield for brands – and the rules are still being written.

Just last week UK comedian Alan Davies was ordered to pay former politician Lord McAlpiine £15,000 in damages over a tweet. Davies' crime? He retweeted a Twitter post which linked to a “senior public figure who is a paedophile.”

Australian learnings

Closer to home, journalist Julie Posetti recently learned she was to be sued by Editor-in-Chief of The Australian Chris Mitchell. In 2010 Posetti had covered a journalist’s presentation at a conference, summarising the speaker’s descriptions of working conditions at The Australian and specific claims about Mitchell.

These tweets resulted in what is believed to be Australia’s first Twitter defamation action. The action was later dropped, but send a clear message that social media can potentially expose individuals and organisations to risk.

We’re all publishers

The internet and particularly social media has outpaced the law’s ability to effectively regulate.

Defamatory laws that previously applied to traditional media outlets now potentially extends to anyone who posts in public, whether via a blog, forum or social media platform. In the eyes of the law as a social media user you are a publisher, and if you post or host something defamatory you can be sued.

To further muddy the waters, as online content can potentially be published and downloaded anywhere, if sued you may be contravening defamation laws across several legal jurisdictions.

Now this doesn’t mean the courts are running to clamp irons on the wrists of nimble-fingered bloggers, but all brands should bear in the mind that with a great social media presence comes great responsibility.

When the law meets Likes

Mark Pearson is Professor of Journalism at Bond University and the author of “Blogging and Tweeting Without Getting Sued”.

In a recent interview with Tech Life Australia Pearson advised that brands are also at risk if their Facebook fans publish defamatory comments. 

“What we have is a whole series of cases throughout the world, particularly throughout our US/British legal system, that would serve as precedents for our courts, and some within Australia itself.

“So in recent months, the last year or so, we’ve had important decisions applying the law or breaking new ground with social media.”

Pearson cites the example of ACCC v Allergy Pathway and Clarke v Nationwide News, where the Federal Court determined a party could be liable as a publisher for fan comments on its Facebook page.

More recently, the Victorian Supreme Court found that Google could be held liable as a publisher for defamation posted via its search results.

Be vigilant

While the threat of litigation from social media activity remains slim, it is important brands are aware of the potential risks involved in posting and publishing online.

As a general rule, if in doubt, don’t post. Are the potential risks worth it? And if you’re hosting a Facebook page or another platform where fans can make comments, be vigilant about moderating potentially defamatory comments.

It’s not just good business practice, it’s good manners.

To find out more visit the Australasian Legal Information Institute’s web site.

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