Have you ever wondered how much legal bearing social media disclaimers, like ‘retweets don’t mean endorsement’ and ‘opinions expressed are solely my own’, carry?
Or what the potential implications of sharing a defamatory post are, even if you didn’t write it? You may want to read on before sharing that inappropriate Tweet.
Professor Kathy Bowrey from UNSW Law busts five common social media myths.
MYTH 1: You can override Facebook’s terms of service with a copyright and privacy disclaimer
Have you seen the following copyright and privacy disclaimer on Facebook?
I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, messages or posts, both past and future. With this statement, I give notice to Facebook it is strictly forbidden to disclose, copy, distribute, or take any other action against me based on this profile and/or its contents. The content of this profile is private and confidential information.
MYTH BUSTED: Professor Bowrey says your contract with Facebook is set by their terms of service when you open an account. Facebook may notify you of updates and changes to the terms of service from time to time, however these will be deemed to be accepted by you if you keep using the platform.
“A user doesn’t have the same liberty to unilaterally change the terms of service by posting your own views about what is permitted. One of the most basic terms of having a Facebook account is that you agree to give them permission to do things like display content you post and build the Facebook community. Permission only ends when the content is deleted from Facebook,” says Professor Bowrey.
Although you can tweak your privacy settings to control who has access to your profile and what content appears as part of your personal Facebook community, it is not a private platform.
“Facebook is designed as a social media platform that shares data and content to connect you to people and companies it thinks you might be interested in interacting with, and the contractual terms reflect this objective.”
MYTH 2: A disclaimer in your Twitter bio protects you from liability
Does the disclaimer, ‘retweets don’t mean endorsement’ in a Twitter bio actually remove liability that would otherwise be assigned to the account owner?
MYTH BUSTED: A retweet is a republication of the original post. Professor Bowrey warns if the content is defamatory, racist, misogynistic, misleading or just plain wrong and affects a person or company’s reputation, you might still be liable for the hurt and loss caused to others.
“If the content involves criminal conduct, such as inciting terrorism or vigilantism, it could expose you to prosecution.”
MYTH 3: Posting a disclaimer will protect you if you post at odds with your employer’s ethos
Does posting the disclaimer, ‘opinions expressed are solely my own and do not express the views or opinions of my employer’ on your social media profile protect you if you post something deemed inappropriate?
MYTH BUSTED: Professor Bowrey says employers often have social media policies because their reputation can be damaged by online chat.
“If you breach company policy it may be a valid reason for dismissal. If you are a public servant, you have an additional responsibility because Australian Public Service values include being ‘apolitical’. A disclaimer won’t protect you if your boss is upset by your online comments.
“If you are sacked and claim it was an unfair dismissal, the Fair Work Commission does try to balance protection of an employee’s reasonable expectation of privacy and the employer’s interest,” explains Professor Bowrey.
She says your decisions about who can see your posts, as well as the type of content you post matter more than a disclaimer.
If you post official work-related content alongside personal content, it can be hard to argue that the opinions expressed are merely private.
MYTH 4: Posting a disclaimer protects you if you post about other people
Does including the disclaimer ‘these opinions are my own and should not be taken seriously’ in your profile protect you if you write something inappropriate about somebody?
MYTH BUSTED: “Defamation law is not interested in what you think about what you post, but rather the effects of what you post on the reputation and standing of others. For this reason, these kinds of disclaimers are not effective.”
Professor Bowrey says you need to consider whether what you say could be taken as offensive by another person. If what you write is clearly satire, there may be more leeway because the imputation will be different, but people will have different ideas about what is funny and amusing.
“A flippant comment can also attract viral shaming when the context is misunderstood, or if it’s just not liked by others. As we have seen happen online, it’s not just defamation law that can bite back.”
MYTH 5: You are not liable if you share (rather than create) a potentially defamatory social media post
MYTH BUSTED: Professor Bowrey says whether the post originated with you or elsewhere, it is how the post could affect the perceptions of others that matters.
“Think before you share content, as much as you would when you create an original post. If you have many more followers than the source of the original post, it will circulate far more broadly and could cause further harm through your sharing.
“If you belatedly think a post could be problematic, delete the content from your account as soon as possible to try and minimise it circulating further.”