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Who's responsible for monitoring user-generated content?

28 April 2014

New Zealand law firms are increasingly using social media websites to communicate with staff and clients. It is common for businesses to use Facebook, Twitter, YouTube and LinkedIn to advertise their wares, but many in the legal profession are choosing the latter as a way to promote their offerings.

Law Society research conducted via LawPoints showed that out of the 240 lawyers who indicated how they use social media, 36.02% used LinkedIn for work only, with 19.92% using it for work and personal use. comScore Data Mine – an online statistical generator – says 2.8 million people accessed a social media site in New Zealand during November 2013, with this category reaching 94.6% of the total Kiwi internet audience.

Facebook was the clear leader with 1.95 million unique visitors, with LinkedIn coming in second place with an audience of 798,000 unique visitors.

In the past 12 months, LinkedIn displayed strong growth (53%) with its population growing from 520,000 in December 2012 to 798,000 in November 2013. Blogger (a free blogging platform run by Google) ranked in third position with 559,000 unique visitors that month.

LinkedIn attracted a large share of the older population with two thirds of their users over the age of 35 (68.6%), while more than half (55.3%) of Tumblr’s users are under 35.

Facebook and Blogger shared a similar audience composition, where the number of visitors aged 15-24 accounted for the largest segments of the Kiwi audience, whereas people aged 55-plus made up the biggest proportion of LinkedIn users in November 2013.

On November 26 last year, LinkedIn announced it had gained 1 million members in New Zealand (259 million members globally).

These findings seem to coincide well with statistics gathered in LawTalk issue 836, revealing the average age of a lawyer at 40.2 years (based on the knowledge of ages at just over two-thirds of the profession).

According to the MYOB Business Monitor March 2013 – a survey of 1000-plus small and medium sized enterprises (SMEs) throughout the country – 23% of business, professional and property SME operators use social networking sites for business purposes, 7% have only a social media site (for example a Facebook page) as an online presence for their business and 16% have both a business website and a social media page.

Kirsten Hodgson of Kaleidoscope Marketing says she has seen a marked increase in the legal profession turning to social media as part of their marketing strategy.

“At an individual level, yes there has been an increase. Although on the whole I still don’t think lawyers are using these tools as effectively as they could.”

She says this could be because some are still unsure of how to use or monitor them and how they fit within the lawyer’s or firm’s existing business development initiatives.

She says using social medium platforms such as LinkedIn requires a common sense approach; being aware it’s public information and explicit as to who should view a post and why.

Graph showing major social media platforms, by age of users.

Brookfields Lawyers partner John Ferner, who specialises in corporate/commercial law says any third-party or user-generated comments (UGC) presented on your social media pages that refer to your business may be your responsibility under the law, even though you have not directly created them.

“If you are incorporating third-party comments in the social media channels you use for business marketing you need to remember that those comments can become part of your advertising and your responsibility in law,” he says.

“The onus is on you to closely monitor and moderate the third-party comments to ensure they do not contain statements that could not legally be made in any other type of advertising.

“Your own comments are obviously covered by the Fair Trading Act [1986] and defamation law.”

There have not been any court decisions in New Zealand regarding this. However, the Australian Competition and Consumer Commission strictly viewed comments on a business’ social media website as marketing communications.

In a case in Australia, the Australian Federal Court held that the company in question accepted responsibility for fan posts and testimonials on its social media pages when it knew about them and decided not to remove them.

“People need to remember that when they put up a Facebook page or set up a Twitter account in the name of their commercial organisation or company, everything on that page is a statement by them. At least to the extent that they have not taken it down after they’ve had time to do so.

“It’s their responsibility to manage that page and take down the stuff that’s inappropriate.”

This can be the obvious negative comments but also overly positive ones which are unsubstantiated.

Mr Ferner says it’s the overall impression of the message that really matters, as a successful legal career is based on reputation.

“If you do this [market on social media] and you have a page that’s designed to pick up testimonials, have a look at regular intervals and make sure what’s being said is appropriate. If not, take it down.”

graph showing how people use social media for personal or work purposes.

Advertising Standards Authority chief executive Hilary Souter says if a company or firm is caught out on a social media website, it’s about being proactive and removing the content quickly.

For the purposes of the ASA Codes of Practice, the word “advertisement” includes any form of advertising and includes advertising which promotes the interest of any person, product or service, imparts information, educates, or advocates an idea, belief, political viewpoint or opportunity.

Therefore, Ms Souter says, a firm should first think about what the purpose of the page is and whether it falls with the ASA’s definition of advertising – whether it’s informational/promotional.

She says the regulating of social media platforms is on a case-by-case basis following a complaint as “there’re no hard-and-fast rules at this stage” – but that user-generated information could be included.

“What’s interesting about social media is that it’s not been a big generator of complaints for us ... Because you can interact within the medium itself you tend to get immediate feedback from people. You have to be proactive in managing it,” Ms Souter says.

“It’s important to have a communications strategy and within that, what your social media strategy is and why you’re doing it. Having it for the sake of it is not necessarily going to do anything for you.”

Ms Souter says legal comment or articles placed on LinkedIn “hasn’t been tested yet” but said hacking or trolling is a very real threat.

“For us, in the self-regulatory environment, it’s all about the proactive steps taken. It’s almost impossible to avoid that sort of thing happening if people are intent on doing it, but the issue for us is what steps were then taken as soon as you were made aware of it.”

Last updated on the 17th March 2016