What is a Social Media Policy?

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Malcolm Burrows from Dundas Lawyers

This is a guest blog post by social media lawyer Malcolm Burrows:

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Twitter, Myspace, Youtube and Facebook (Social Networking Sites (SNS)) have become household names in the new millenium. Whether you like it or not, staff in your organisation are using them.

What is a Social Media Policy?

A Social Media Policy (SMP) is a document that augments the contract of employment so as to be legally enforceable by an organisation on its employees. The aim of an SMP is to clearly communicate what is acceptable conduct on Social Networking Sites by an organisations employees and contractors and what conduct is unacceptable and would make an employee liable to dismissal.

An SMP is distinct from an organisations Social Media Strategy (SMS) which is a high level document that communicates how an organisation plans to participate in social media.

What risks can a SMP protect against?

By and large, the legal risks posed to organisations can be categorised into two parts, internal and external. An SMP can attempt to protect against the internal risks posed by those associated with the organisation.

The legal risk matrix of social media

An SMP can therefore address the following internal risks:

Loss of confidential information;
breach of copyright;
Defamation;
False statements and or misleading and deceptive conduct;
The tort of Passing off;
Organisation and industry specific risks posed by the organisations operating environment;
Reputation risk;
Statutory risks including:
Breaches of the Privacy Act;
Breaches of continuous disclosure obligations in the case of listed public companies;
Discrimination.

The above risk matrix is by no means complete as many of the risks are not easily segregated and cross boundaries. A well considered SMP (and revised contracts of employment) should take these issues into consideration.

Is an SMP binding on an organisation’s staff?

The general rule is that an employer cannot regulate the afterhours conduct of its employees. That said, if the conduct complained of is referrable to the organisation, then a case can be made that it can. Therefore an SMP can be binding on an organisation’s staff provided that all reasonable attempts have been made to bring the SMP to their attention.

Drafting tips for SMP’s

In drafting an SMP, there are three key considerations which must be taken into account:

a) The organisations SMP (what it is that the organisation is doing or plans to do on Social media sites);

b) The subsequent social media risk matrix posed by the Social Media Strategy;

c) Any industry specific risks posed to the organisation – (Dentists for example are prohibited from sing testimonials to promote themselves)

The SMP development process should involve senior management to understand the risks so as to make informed decisions to control them in order to reap the benefits of participation.

Organisations should also ensure that those staff that are involved in social media in an official capacity are aware of the legal risks of participation so that they can respond appropriately when the time comes. Monitoring activity on social media is also critical to this strategy.

Why your organisation should have an SMP

Whether you like it or not, statistics show that your organisations staff are particpating in social media.

If you would like to harness the benefits whilst controlling the risks, you need a well thought through SMP, otherwise it will be difficult to control the activities of staff that are on social sites regardless of whether or not they are engaged officially or not.

BA.,LL.B.,GDLP.,MQLS.

Practice Partner

Dundas Lawyers is one of a few legal practices with specialist expertise in Social Media Law. If your organisation needs assistance to protect itself against the risks of Social Networking, whilst getting the benefits, please contact me directly or follow me on Twitter @ITCorporateLaw.

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“The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Dundas Lawyers’ legal practitioners who will consider their particular circumstances”.

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Adam Franklin is the bestselling author of Web Marketing That Works. He is an international social media speaker and CEO of Bluewire Media. His blog was Australia's #1 Business Blog and his podcast was #9 on the top marketing podcasts in Entrepreneur magazine. His work has featured in Forbes, Entrepreneur, The Australian, Sydney Morning Herald, Huffington Post and iTunes. Download the popular Web Strategy Planning Template which has been used by hundreds of thousands of businesses worldwide. His weekly 'Bluewire News' email goes out to over 32,000 readers.