Social media: the dark side

Data released by Sweet and Maxwell2 has revealed that the number of online defamation lawsuits has more than doubled in the last year and many believe this rise in ‚cyber libel’ is related to the increase in online social networking.

While organisations clearly understand the benefits of maintaining a presence on social media sites and enhancing their own web sites to provide the best online experience for customers, ‚not all have fully realised the consequences of these initiatives and the risks they run in cyber space‚ says Steven de Boer, Media and Technology Division, Risk Management Practice, Marsh.

Certainly, the rate of growth and change has been quicker than most organisations anticipated. Many have, in effect, become online publishers, without having established the checks and procedures which traditional media organisations have in place to manage the content they generate.

For example, while general liability policies often include cover for advertisers’ liability, ‚social media communications are viewed as corporate communications, rather than advertisements, with the result general liability policies are extremely unlikely to respond‚ explains de Boer.

Equally, traditional professional indemnity policies will not provide cover, since corporate communications are not professional services.

So, what can organisations do to manage these risks?

Firstly, make sure employees responsible for social media posts are adequately trained. If an organisation is tweeting or has a facebook page, who is responsible for its content? Have they received the same level of training as other individuals responsible for the organisation’s external communications?

While the informal nature of these sites can lead to an informal approach to posted messages, they remain subject to the same laws regarding defamation and intellectual property rights as any other official content. ‚Employees must have a good understanding of the law in these areas‚ advises de Boer.

Secondly, have a robust moderation procedure in place for your website. Companies allowing user-generated content on their sites need to consider whether they will apply pre or post-moderation to the content. Choosing to moderate content before allowing it on to the site you can be perceived as assuming editorial responsibility, which is potentially more onerous in the event of a claim. Companies also need ‚a clear takedown policy in the event of complaints, which should ideally include immediate removal of contentious content‚ says de Boer.

Thirdly, organisations should apply appropriate filter systems. For example, what procedures are in place to check a user’s age? Are there copyright disclaimers for users to agree to prior to uploading content? If the organisation is operating a post moderation site, does it have appropriate filters for key words?

Finally, organisations should always consider their geographical footprint. While organisations may consider themselves domiciled in South Africa and target their communications locally, the internet is universal. ‚Your comments can be seen far beyond the borders of the country for which the broadcast was intended, potentially leading to unforeseen international exposures‚ added de Boer.

Given these challenges, specialist media liability, or cyber liability, policies can be specially constructed to provide cover for claims arising from social media activities. ‚Not all of these policies include social media activities as standard and so careful wording is required to ensure all your activities are included in the programme‚ warns de Boer.

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