With 3.2 billion users worldwide, the importance of social media – personally and professionally – can’t be underestimated. Aysha Hussain provides a few reminders about the need for businesses to treat social media activity responsibly

What was that?
Most social media platforms encourage their users to share their thoughts. It should really go without saying, but you need to be aware of the legal implications of posting statements about other individuals or companies, whether from your personal or corporate account. Publishing defamatory content (any statement about a person or company that injures the reputation of that person) on any social media platform can carry significant consequences, including heavy financial penalties and serious reputational damage. 

Katie Hopkins was famously fined £24,000 in damages and allegedly £300,000 in costs after the High Court found that a series of tweets posted in 2015 were defamatory and had caused ‘real and substantial distress but also harm to the claimant’s reputation which was serious’. While these tweets were from a personal account, it could just as easily have been a company that posted such defamatory
comments.

The tip to take away from this example really is to err on the side of caution: unless you are 100% sure of your facts and can easily prove them, refrain from posting statements about others, however tempting. At the very least, make sure that employees with access to the company’s social media accounts are thoroughly briefed on your social media policy. The risk you face is a protracted legal battle and a substantial fine.

Permission to strike a pose?
Businesses should carefully consider what pictures they choose to post, and how they wish them to be used: intentions are essentially irrelevant when it comes to social media, and once something has been posted, control of it is relinquished. 

Using a picture in any form on social media without permission or licence will leave your business open to litigation. In a recent case, Getty Images successfully sued a small removals business which had used one of its photographs for breach of copyright. The business was ordered to pay £2,000 in damages, plus legal costs - not an insignificant amount for a small business for naively taking a chance and using the photograph. 

Employers also need to remember to seek permission before re-posting any pictures from their employees’ social media accounts; the content on an employee’s personal profile is itself protected by copyright.   

A recent extreme example from the States reinforces the reputational damage that can result from using an image without permission. A young woman had applied to a marketing agency; details of her social media profiles were required for the role. She was horrified to learn later that the company in question had reposted – with negative comments - an image of her on its Instagram account. The image was of the applicant in a pool wearing an unusually revealing bikini. The story went viral and the company was forced take down its social media profiles and website because of the backlash.  

#hashtag
Hashtags have become a powerful tool for marketing your business on all social media platforms. They may seem like a good marketing move for your business, but without sufficient protection they can be used by others to your company’s detriment. 

So what can you do to protect your hashtag? Hashtags are too short to qualify for copyright protection, so your best bet is to try and register your hashtag as a trade mark; UK trademark law allows a mark to be registrable if it is distinctive – and that mark could include a hashtag. However bear in mind that this is neither straightforward nor cheap.

Some years ago the fast food giant McDonald’s used the hashtag #McDStories to promote a new campaign. Somewhat predictably, it was quickly hijacked by Twitter users to publicly share their bad experiences with the company. Without control of the hashtag, McDonald’s were forced to pull an expensive campaign after just two hours. This remains a salutary lesson about thinking through the consequences of using words or phrases that sound great – but can generate negative feedback when released into the ether.

Got the video
Copyright breaches can occur easily without you even being aware of it, and businesses should be particularly cautious of posting video content that includes music: without the appropriate licence, that can amount to copyright infringement. Many websites and online platforms such as YouTube, where copyright infringements are a constant issue, now have automated Content ID systems to monitor for potential copying.

There is a provision in the law for ‘fair dealing’ which allows the use of copyright protected material in certain very limited circumstances, but the Copyright Licensing Agency recommends that businesses create a policy and guidance for employees on how to avoid copyright infringements. 

Our specialist Technology, Media and Telecoms team has broad experience in dealing with issues concerning social media activity. If you need help with bringing or defending a potential claim, or with establishing an appropriate policy for your business, please do get in touch. 

Aysha Hussain is a solicitor in DMH Stallard’s specialist TMT team. She can be contacted on 01273 744207 or by email at aysha.hussain@
dmhstallard.com