| Issues | Legal issues | Business 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:
Privacy/Data Policy:
Intellectual property, copyright Infringement
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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. |
| Privacy | If 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 content | If 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. |
| Publication | If 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:
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| Intellectual property/copyright/trademark infringement | The 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 services | You 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:
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