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Twitter as a business risk

If a member of your staff tweets something offensive or defamatory is your firm liable and what can you do to control or prevent it? writes Rob Kingsbury 

Fast paced responses + heat of the moment + connection with business = business risk

If a member of your staff tweets something offensive or defamatory is your firm liable? While there are potential dangers to allowing employees to use Twitter, as part of the business’s marketing or customer service proposition for example, proactive steps and instilling a professional culture into the business can mitigate the potential for damage to a firm, according to consultants.

One of the dangers of tweeting, said Michael Clarke consultant commercial litigation with national law firm Clarke Willmott LLP, a speaker at the recent IFP conference, is the fast pace of the medium, with people able to fire off rapid replies and for a debate to spread quickly and to grow heated in a short space of time.

“Twitter and other means of social media can be extremely good for your business, they can build the brand, raise awareness and genuinely attract followers who will want to take advice from you but that requires that you are terribly careful that communications going out from your business, via your equipment are professional and not liable to cause offence. Care must be taken in the meaning of the message and whether it’s truthful and whether it’s affecting third parties,” Clarke said.

When assessing the potential impact of Twitter on a business, the first thing to understand, Clarke pointed out, is that tweeting is regarded “as another form of publication, the same as writing a letter, putting a piece in the newspaper and all those traditional means of communication.” This means the laws around defamation apply.

There may be some business owners that immediately rule out twitter as a viable communication channel as a result, but that could be short-sighted because as people increasingly use social media, including Twitter, to communicate, this could leave a business lagging behind its peers in the eyes of existing and potential clients.

If something does go wrong, said Clarke, the first question to ask is was the tweet written on or sent from your firm’s equipment, under your company brand, or rather as a private individual? Even if it was the latter, “anything in the tweet that identifies the company or suggests the person concerned is speaking on behalf of the company could create a problem.”

Care with retweets

While the author of the piece is the primary publisher, said Clarke, people also have to be careful when retweeting. If a message that is deemed to be defamatory is retweeted then that may be seen as having republished the libel. It is important, therefore, for anyone who retweets a message or a message with a link, to have read the content before they do so.

Those claiming defamation can sue for damages and Clarke gave examples of recent law cases where defamatory campaigns via Twitter had resulted in claims of between £10,000 and £60,000 being awarded.

For someone to claim, Clarke said, the statement has to be: False and damaging of reputation; understandable within the natural and ordinary meaning of the words; innuendo with a meaning that is obvious to a third party; and within context.

However, Section 1 of the Defamation Act 2013, passed in January 2014, is important, Clarke added, because it requires that for a defamation to be actionable “the claimant has to prove serious harm” which in the case of a trading body has to be serious financial loss or the likelihood of it – including serious damage to reputation.

Pro-active control

Clarke suggested several ways to pro-actively control the use of Twitter and other social media channels within a firm.

1. Professional training of staff in the use of social media.

2. Having written social media guidelines.

3. Linking those guidelines to staff contracts of employment.

“Don’t be oppressive. Keep the guidelines short, clear and make sure that your staff understand what is acceptable and what is not acceptable,” Clarke said. “Not only does that persuade them that they are working for a professional organisation but it can help distance the company as an employer from being vicariously liable for any libel that does occur.”

This could be taken a stage further by saying that tweeting or engaging in social media without applying the firm’s guidelines could be gross misconduct and a breach of contract, Clarke added. “If that is in your contract then it gives rein to deal with unacceptable behaviour.”

If something defamatory is published, immediate action in the form of a quick apology and retraction, “a genuine demonstration that it was not intended and is very much regretted” is a way to help restore the position, Clarke said. “In this scenario, reducing that serious harm is quite important. Where a claimant has acted quickly to mitigate the impact, such as publishing a full apology, this can affect whether a libel is actionable or not.”

Compare social media to email

Responding to potential concerns, Bridget Greenwood, director of Financial Social Media UK, says social media is becoming pervasive as a method of communication and rather than trying to avoid it, social media should be integrated into the culture of a firm. Furthermore, she suggests, social media skills should be identified as part of the hiring process.

“Just as once companies had one email address and now everyone has their own email address within the company, so social media is going to become accepted,” she says. “What firms need to do, therefore, is to hire people who are comfortable with social media because they will need these skills to be able to talk to their existing and potential customers. If people know how to use these channels they are more likely to know what and what not to do when using them.”

Greenwood points out that should firms feel they need a further safeguard, then technology can be employed to nip in the bud any potential defamation, or simply to ensure staff do not use phrases and words that are unprofessional or could be seen as a promotion by the regulator.

“There’s plenty of software people can use to monitor and limit social media use. Lexicon software will automatically flag if certain words or phrases are contained in a message. The message can then be sent to someone for authorisation before it can be published, or automatically deleted,” she says. “That could be swear words or words that might be linked to a financial promotion, because as well as defamation there are also regulatory issues adviser firms need to consider.”

Also, varying levels of permissions can be set around the individuals’ ability to read, write, and publish on social media channels. “This can allow firms to see if someone is writing in a way that fits with the company brand,” Greenwood says. And increasingly, software will read across all devices, whether desktop or mobile, giving firms greater peace of mind should they need it.

Above all, as with writing emails or even letters, it’s a matter of people “applying some common sense”, Greenwood says. “Anyone using Twitter or other social media who is tempted to say something that isn’t positive or constructive or helpful or true should keep it in their head. That applies whether you’re speaking face-to-face or using social media.”



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