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Use of social media services for marketing/promotions

IssuesLegal issuesBusiness issues to consider
Social media services terms of use

They are terms of the social media sites setting out how you, the user of the social media services interact with the site and other users (members and visitors) of the site.

Below are the key common terms of some widely-used social media services, such as, Twitter, Facebook and LinkedIn:

User Agreement/Terms of Service:

  • The agreement is between you and the sites operators, which are companies based in Ireland.
  • You own the content you upload and share on the SMS, however, the site operators have a wide, non-exclusive and royalty-free license to use the content.
  • The SMS operators collect and use your information in accordance with their Privacy/Data Policy, which you agreed to upon registration or use of the SMS.
  • The SMS operators have the right to remove any content that they consider offensive or inappropriate and exclude all liability.
  • The governing laws that apply to any disputes with the SMS are the laws of the State of California, U.S.A.

Privacy/Data Policy:

  • The SMS collect information about you from the information you upload and share on the SMS and your activities on the sites and their related websites and apps, and SMS use of Cookies and Web Beacons.
  • The SMS use the information to provide, develop and improve their services to you, communicate with you, personalise advertising to you, and enhance security.
  • You consent to your information transferred and processed outside Australia, including the United States and Ireland.
  • Facebook and LinkedIn comply with U.S.-E.U. and U.S.-Swiss Safe Harbor Framework.

Intellectual property, copyright Infringement

  • It sets out the procedures for parties to make a claim of copyright infringement.
In a nutshell, the User Agreement/Terms of Service govern the relationship between you and the social media site operators. However, there is no contract as between the site users (members and visitors).
You should closely look at the terms of the SMS and understand the implications of those terms before registering a user account and using it as a platform for engaging in EDM activities on that site.
PrivacyIf you are collecting personal information through activities conducted on the SMS, for example, through a competition on your Facebook fan page, you should consider the privacy implications of the Privacy legislation. Our Direct Marketing & Privacy – Health Check provides a broad overview of the requirements of the Privacy Act 1988 and the applicable legislation governing EDM.One issue to consider is the transfer of personal information to the U.S. The laws governing cross-border transfer of personal information is complex and we recommend that you seek legal advice specific to your business circumstances.
Misleading and deceptive contentIf you post or share inaccurate or untrue statements about your products or services, you may be responsible for those statements, including statements made by third parties, such as, customers.There are laws and regulations that apply to misleading and deceptive content, including the corporations laws, competition and consumer laws (for example, relating to misleading and deceptive conduct as to goods and services, and pricing), and industry-specific regulations (for example, financial services), advertising standards and codes of practice.
Those laws apply equally to online activities on the SMS.
PublicationIf you operate any internet interface, for example, Facebook, which procures third parties comments or testimonials, which are visible to the public, you may be taken to be responsible for any inaccurate or untrue statements posted on your Facebook fan page wall. This was the outcome of a decision of the Federal Court in ACCC v. Allergy Pathway.
The implications of this decision could apply to posts and tweets made by third parties on other social media sites or on your business’ website which the public can view. It extends to such online contributions made by third parties, even if they are unsolicited.

You will need to consider the policies, process and procedures required to be put in place to:

  • monitor all content posted on the SMS and your website by third parties as well as by employees
  • remove any offending content
  • educate your staff and train the employees responsible for posting, commenting and monitoring such SMS.
Intellectual property/copyright/trademark infringementThe user owns the content but the SMS operator has a wide license to use the content.
The SMS Terms of Service clearly set out the mechanism for lodging intellectual property, copyright and trademark infringement claims, complaint handling, dispute resolution, and take-down policies.
The complaint handling and dispute resolution mechanism may not provide the appropriate remedy in all circumstances. In cases of serious infringement, you may need to take legal action.
Conversely, it is important that you have in place procedures to ensure that your staff does not share content that infringes other parties’ intellectual property rights, copyright and trademark.
Employee use of SMS for marketing/promoting business goods and servicesYou may be vicariously responsible for your staff’s use of SMS.

You will need to consider a social media policy to be put in place covering the following:

  • how your business interaction on such SMS
  • your strategy for handling problems that may arise

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Amie Mac.


BBus (Accountancy),
BEcon, LLB, LLM (Commercial Law), MAICD

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