Social media is the ultimate tool to promote your business and ensure you have the best reach to all existing and potential consumers.
However, with the benefits come the downfalls. You need to be aware of any implications that may occur from your social media posts.
Many believe that as social media is up and coming, so therefore not classed as traditional media, less care needs to be taken when considering what should be said or portrayed through your business’s social media.
These people are incorrect as the legal implications of an insensitive tweet or Facebook post can be detrimental to you and your brand.
Intellectual property infringement
You need to be sure when making any references on social media that you are not infringing other’s intellectual property.
You should also be aware of your own intellectual property presence and protect any brands or logos that you have built a brand with.
There are a number of different types of intellectual property that you need to be up to speed with:
Anything that is original can be protected with copyright. This included images, designs, films, music and written work. Therefore, you need to be sure that anything you use on social media or a significant part of it is original to you and not copied from another source. Copyright protection occurs automatically therefore it is not always immediately obvious that the work is protected.
Look out for the © sign as this indicates that a person is clear on their copyright protection. On the flip side, if you have an original work that you are using on your social media, it will be worth attaching the sign so others can see it cannot be used by them.
Registered trade marks
The creation of a brand in itself will create a trade mark. Whether it is a business name, logo or a slogan/phrase, they are worth protecting through registration. A registered trade mark allows you to prevent any third party from using your brand which has built up a reputation without your permission.
When creating a trade mark, however, it is important to make sure that it is not already being used by another party as a case of infringement brought against can see the end of your business.
Also, if you want to ride on the coattails of a big brand as you feel this might attract customers, think again. Many big businesses have whole teams of lawyers and a lot of money to use against you. So believe us when we say it is not worth it.
Be unique and built your own brand.
The use of a trade mark belonging to another on social media without their permission can constitute trade mark infringement. In addition, the use of another’s trade mark when a comparison is made to your trade mark or product is also infringement, especially on social media.
Therefore, be vigilant when creating social media posts, and always be your own brand.
Even though a brand may not have a registered trade mark, if they have built a good reputation in the UK and you try to copy their logo or name, you may still be committing the common law offence of passing off.
If consumers are being misled to believe your posts are originating from other brand or you are looking to feed off another brands success by being closely linked, passing off will come into play. This offence is not a lesser sentence than infringement of a registered trade mark but it does require a high level of evidence to prove that the mark being ‘passed off’ have developed an established reputation and the use has caused damage to this.
In addition to any intellectual property rights you need to be aware of, you also need to be sure that what you are posting on social media about other businesses and brands is factually correct and cannot come back to bite you.
A part of any business’s social media campaign is not only self-promotion but also showing that your product or service is better than any other competitor.
While this is common practise, it is not an opportunity to criticise and bad mouth any close competitor.
If you make any comment on any form of social media that has an impact on another business’s reputation in a detrimental way, you may be subject to a case of defamation. If the statement is untrue and is likely to or has caused serious harm, it will be deemed defamatory and will have serious consequences on you and your brand.
Not only will it hurt the competitor’s reputation but it will also not cast you in the best light as many consumers will be put off of a brand that has been involved in malicious activity.
Not only do you need to be clear of the civil actions that you can take and can be taken against you, there is also a number of criminal offences you need to be aware of.
These apply to more continued and serious actions on social media as they have more serious consequences. Any actions that result in a criminal penalty with personally effect you, not just your business. You could potentially receive a prison sentence if your actions are serious.
There are a number of offences that could be relevant, however the main one in respect of bad mouthing a competitor on social media.
Under the Malicious Communications Act 1988, if any communications, which include social media messages, are made that include a threat, false information or an offensive message which is intended to cause distress or anxiety to the receiver, the sender will be guilty of a criminal offence.
If these messages are continued over a period of time, the offence could escalate to a case of harassment. This obviously carries more serious consequences and can result in a five-year imprisonment sentence.
Actions to take
If you have been subject to any of the above offences, which have occurred on social media, there are a number of actions you can to try and prevent any further damage.
There are a wide range of actions you can pursue; however, this will of course depend on your situation. If you have a limited budget or need a resolution quickly, certain actions may not be the best choice.
There is also the issue of being able to directly contact the person who may be committing the act and hold them accountable. As social media is through the internet, connection can be made between people on opposite sides of the world. To take an action further, the person needs to be freely available to take account for their actions.
A simple way to dealing with social media content that harasses you, defames your character or infringes your intellectual property rights is by making a take-down notice.
Many social media platforms have systems in place that allow you to report any post or message that have a detrimental effect on your business or your character. You can request that the post is reviews then subsequently taken down and the poster warned of their actions.
However, if the problem is ongoing, then a more hard-hitting solution may be a better option.
By taking a case to court, you need to be sure that you have an adequate argument as well as the resources to see it through.
Civil litigation is expensive and time consuming; therefore any action needs to the last resort.
The best action to take if you want to permanently prevent the person from posting about you and your business again is to pursue an injunction. This again, though, should only be considered as a last resort.
For more guidance on how to deal with detrimental posts on social media that are having an effect on your business or for clarification on how you should be acting on social media, contact Lawdit Solicitors.
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