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Website and Social Media Liability: Navigating the Perils of Being Online

  • Emma Tyler
  • February 6, 2024

In the digital age, websites and social media platforms have become ubiquitous tools for advertising and brand promotion. However, the content or interactive nature of these sites and platforms can sometimes lead to unforeseen complications, particularly when it comes to mistakes or negative content posted by third parties on a company’s social media pages or even content being misunderstood as defamatory or a breach of another company’s IP.

Understanding how to manage the risks of your online presence is key.

Who is Responsible?

The primary question that arises in such scenarios is: who bears the responsibility for errors, negative or harmful content posted on a business’s web or social media pages, whether or not it was intended or misunderstood by a member of the public or competitor?

The answer depends on several factors, including the nature of the error, the content, the platform’s policies, and where the person making the complaint is from.

  1. User-Generated Content: Often, the content that appears on a company’s social media page is not directly posted by the company but by users or followers. In such cases, the company might not be immediately responsible for the content. However, if the company is seen to endorse or interact with this content in any way, liability could potentially be attributed to them.
  2. Platform Policies: Social media platforms have their own set of rules and community guidelines. A business must adhere to these guidelines and ensure that its page does not become a conduit for content that violates these policies.
  3. Legal Jurisdiction: In Australia, the website provider is not likely to be responsible. Liability will be the responsibility of the person or user that posted the article or image. So, as the owner of the web content, your business is rightly or wrongly likely to be considered as being responsible.

What Can Be Done?

  1. Active Monitoring: Businesses should ensure web content meets guidelines and also actively monitor social media pages. Implementing moderation tools or dedicating staff to oversee online interactions can help quickly identify and address negative or harmful content.
  2. Clear Policies and Terms of Use: Establishing clear guidelines for users who post content or manage social media pages can set clear expectations and ensure that content is appropriate or removed quickly if posted by a third party.
  3. Timely Response: If defamatory or damaging content is posted, a swift response is critical. This may involve removing the content and issuing clarifications or apologies if necessary.
  4. Training and Awareness: Employees should be trained in the business web content policy and appropriate use of social media.
  5. Insurance: depending on the type of business, insurance for defamatory content, alleged breach of other intellectual property or mistakes when posting can be obtained. Professional Indemnity, Multi-Media or General Public & Product Liability insurance packages will pay for reimbursement of legal defence costs, as well as damages awarded by a court. We suggest talking to your professional insurance adviser.

Being online and having a social media presence can offer opportunities for businesses, as well as challenges. Proactively managing the risks and having the right type and amount of insurance in place will maximise the benefits and minimise the risks.

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