Are you using social media for promotion? Do you host a discussion group, blog or discussion forum? Your online content exposes you to every legal system on the planet - even if you didn't write it yourself. As the law struggles to keep up with global comms, insurance can step in to protect you.
5 Tips To Save Your Social Bacon
Defamation laws differ even between countries as similar as the US and the UK: you can say something on your own platforms that would get you into deep water in another jurisdiction - but how are you to know? As a website owner/operator you’re liable for libelous statements on your own website or posted by your employees on third party sites or social media. This includes promotional material (for example, a press statement from your marketing, even if you haven’t approved it), reviews of and comments on others’ products or services. The relative informality of social media and online forums may encourage a relaxed attitude - but comments are widely accessible on a global basis - think of Sally Bercow’s liability to Lord MacAlpine for Twitter comments accessed by a considerable number of people (despite bring posted for a very short time).
User Generated Content – to monitor or not to monitor?
You can also be liable for statements posted by third party contributors on your site/forum. The courts have considered that hosts who are simply passive providers of a platform are not considered the publishers of libelous statements posted by others. But if you receive a complaint and fail to remove the posting within a reasonable time, you can become liable as a publisher. In a recent decision the court seemed to accept Google’s policy of not exercising control over content on the basis that the volume of material on its site was so vast as to make it impracticable to monitor it in advance. However, it made it clear that it would consider a host like Google responsible for publication once it was notified of a complaint. For a smaller operation – a blog site for example, you’d probably be expected to do more than Google – as the volume of material concerned is likely to be much smaller and therefore more controllable.
Smaller enterprises need policies and procedures to protect them as well. The 2013 Defamation Act has made things easier, with a defence specifically for website operators – so long as they comply with a statutory “notification” procedure requiring them to remove the posting and give the complainant enough information to identify the author of the posting. The emphasis is on requiring claimants to sue the originator rather than the host site. The Act specifically provides that the defence will not be defeated by the fact that the operator moderates the statements posted on it by others.
Conclusion: it’s a jungle out there, with technology and legislation evolving rapidly – make sure you have water-tight insurance in place.
[with thanks to Philip Lawrence, Mills & Reeve]
To talk through protecting your organisaion in cyber space, contact Tracey Mccreath.
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