The laws of social media: five pitfalls you need to avoid

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Facebook, Twitter, Instagram, LinkedIn and YouTube – we all love our social media, and we can’t wait to like posts, retweet, upload our photos and share anything we find interesting, funny or shocking.

But social media is a public forum. As users, we are publishing and broadcasting and, as aspiring lawyers know, the publishing and broadcasting of any material is governed by laws. More than that, most employers search their employees’ and future employees’social media accounts – it’s surprisingly easy to damage and, in the worst cases end, a promising career.

Two associate professors at The University of Law who teach the Master of Law (LLM) courses, have put together their top five pitfalls of social media, to help people avoid the risk.

It’s OK to have an opinion – but don’t overdo it

We all love review websites: they make it easy to pick a nice hotel for the holidays, or a local and authentic restaurant in pretty much any part of the world. Add to this the burgeoning explosion of bloggers, food and restaurant critics and we are all bombarded with never ending reviews. But beware of what you say online – a bad review can make what was already a bad experience even worse.

Bloggers and vloggers can in fact be sued by owners of businesses if they think that a review was defamatory, or worse still amount to trolling or harassment.

The law of defamation (libel and slander) is a live issue in the UK. Criticism and review are permitted, if based on honestly held opinions. On questions of fact, truth defeats an assertion that material is defamatory, but stray from the truth and the consequences can be severe – and global.

A British internet troll, Jason Page, who abused an American lawyer on Google and caused his firm serious damage in the US, was ordered to pay damages and costs of over £100,000 in the UK High Court – the largest ever award in a trolling case.

The problem is, as with most social media, it is easy to say something and very difficult to unsay it.

Breach of privacy

The Internet knows no borders. However, in many countries, like France, people do have image rights.

Let’s imagine a young couple on a romantic jaunt in Paris. They hold a loving embrace in front of the Louvre, and execute the perfect selfie, which they post on their favourite social media platforms. A week later, Facebook passes on an angry message from a well-known French entrepreneur who was standing in the background with his mistress. He is very upset as his wife has seen the photo and he is planning to sue them.

In England there is no specific right to privacy (yet), but in many countries, the law is much more draconian. Before taking a photo of someone, even incidentally, you must seek their permission if you publish it.

Take a careful look around before immortalising your next life memory.

Defamation and the retweet

Whilst Twitter has proven to be a great tool in letting people become part of a powerful movement, retweeting can also put us at risk of defamation. In 2014, at the height of the UK’s media paedophile scandal, the wife of the current Speaker of the House of Commons Sally Bercow tweeted, “Why is Lord McAlpine trending? *innocent face*” after allegations in the media about an unnamed high-profile politician. She was later found by the High Court to be libelling the ex-Tory treasurer. Lord McAlpine then pursued people who retweeted Bercow’s tweet. He pursued 20 “high profile Tweeters” with over 500 followers, and those with fewer followers were invited to settle the matter with a small contribution to charity.

Moral of the story: retweet at your peril.

Reputational suicide

The rise in popularity of social media apps such as Snapchat and Instagram have further increased the chances of committing “reputational suicide” – posting something that might seem funny or stylish at the time, only to realise that it is not just for the eyes of your close friends, but also for your boss, clients, and potential employers. One single image, video or just a few characters in a Tweet might make all the difference to your reputation.

A (non-fictional) cautionary tale is that of Sophie (not her real name), who inadvisably posted an image of a naked DJ, who looked remarkably like her, as her profile picture on Facebook. The offer of an interview which she had lined up for the following week was withdrawn.

It is also common for employers to use social media to relay good news about their business. However, this can also go spectacularly wrong, as was the case for Baker Small, a law firm that specialised in advising local authorities in contesting claims for children with special educational needs. The firm fired off a series of boastful tweets in 2016, including, “Crikey, had a great ‘win’ last week which sent some parents into a storm!” It lost its place on the Local Authorities’ panel of advising firms, and with it, much of its business.

Failing to think (before you tweet)

Just ask Toby Young, who was obliged to step down from his post as head of the education watchdog, for offensive comments he had made in the past on Twitter about homosexuals, the disabled and starving children in Africa.

Rather than forgetting something you might have tweeted in the past – perhaps during a particular bad day – think twice before you hit ‘post’ next time.

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