Many companies are shy of the internet because they’re terrified of the risk that they run in publishing online. To anybody who uses the internet daily, whether on Facebook or Twitter, or Instagram, or even just to contact friends, this seems wildly ridiculous. Many of us can’t understand why companies should be so risk averse when in fact being visible online can be a powerful thing for customer connection.
In terms of publishing content online, when you consider the scope of laws that you become exposed to, it might well terrify you back to pen and paper. If it does, find someone to help you put in place a risk management framework as part of your content strategy work.
Content publishing and the scope of law is one big, hairy beast
This scope of law was discussed by Dan Svantesson in the January/February 2016 edition of Precedent, the journal of the Australian Lawyers Alliance.
Here is a small excerpt:
“Under the law of many, not to say most, countries focus may be placed on where content is downloaded or read. This means that you will also need to take into account the laws of all the countries in which your Facebook ‘friends’ or LinkedIn ‘connections’ are found; and, less predictably, the laws of all the countries in which they may be located when reading your post. It goes without saying that the number of additional legal systems to be considered grows with the number, and geographical diversity, of your friends or connections, and in light of the mobility of people, may never be fully ascertained at the time of posting.”
Svantesson goes on to point out that it doesn’t stop here. That, in fact, you also need to consider re‐posting, sharing, and the holy grail of content marketing: The viral piece of content.
What risk do you expose yourself to, if your content goes viral?
I’ll bet you’ve never thought about it. And what happens if you post content onto a platform that then makes it available to third parties? Or to which you transfer ownership of the intellectual property to the company that owns the platform at the time of posting?
And if you think that’s messy, consider the content your company keeps in cloud storage. When you put your records and information into a cloud somewhere, your local laws may no longer apply. Instead, the laws that apply may well be those of the country in which the storage takes place. So if you use Dropbox, for example, then your data is subject to US laws, not Australian laws. If you are guaranteeing your customers that their data is safe under Australian law, but your cloud storage puts their data into another country, then you might want to reconsider your guarantee.
The complexity that the internet brings us, as publishers, is staggering.
If you publish in any channel, you’re a publisher. Take your risk seriously.
While the issues of territory and jurisdiction is of enormous difficulty for the legal profession (which will ultimately need to wrangle the debate in all sorts of areas, from defamation to privacy), it behoves every business to seriously consider its publishing activities. In particular, if you share material on social media, you might want to be aware of the rights to which you grant the company which owns that platform. In Facebook’s case (and Twitter’s, and probably many others) for example, you are granting that company “non‐exclusive, transferable, sub‐licensable, royalty‐free, worldwide license to use any IP content that you post”. Which means that they can sub‐license your material to others, anywhere in the world, without asking your permission, without paying you, and in most cases indemnify themselves against you suing them. Twitter’s is similar. And so is Instagram’s. (You can read a damning article about all this stuff here.)
As for whose law? Sometimes you have to guess — and that’s risky too
LinkedIn states, “You agree to only provide content or information if that does not violate the law” — but it doesn’t state whose law. We could probably assume this to be United States law. While we all assume ourselves to be law‐abiding citizens, there may be specifics about another country’s law that we didn’t grow up with, don’t hear about, and are therefore not familiar with. It’s a risk to you if you don’t know the laws to which you agree.
Risk exists because of the unknown
It sounds complicated because it is. And it sounds potentially scary because it is. That fear exists because very few people take risk seriously enough to write a risk management plan that surfaces all of the risk — visible and otherwise — in publishing activity. It’s also unlikely that your digital marketing consultant works with you to produce risk management documentation, and to help you understand the risk involved in such an activity.
Risk exists because of the unknown. Once something is known, you can plan for it, around it, eliminate it or mitigate it, and it’s not a risk any more. The key thing is to address it, not let it fester.
Bring it all to the surface
Unlike this time 20 years ago, where the key problems were reputation and defamation in marketing and advertising, we are now subject to many more layers of risk. Defamation and reputation are perhaps the most visible of issues. Defamation in cross‐border disputes has certainly been dealt with by Australian courts, for example (for example the Gutnick case).
The other things to bring to the surface in your content risk framework include:
- complying with such things as professional and advertising codes of ethics, and issues of copyright
- privacy laws. In Australia, the Privacy Act doesn’t apply to companies with revenues of or under $3 million. More criteria for the application of the Privacy Act are here.
- deceptive and misleading content, the issues of which still apply to material published in social media (and any other content you produce and publish). You can read more about that in our article here.
But in terms of giving another company the right to use your intellectual property? Or to give your IP to other people without paying you? Or, perhaps, the risk of publishing material on an issue that could be against the law somewhere else?
And as for whose laws apply? To some extent that is still under debate. Some of the difficulty with what Alex Mills calls ‘Facebookistan’ can be read here.
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