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Farrer & Co | The perils of social media: how to manage your online content and respond to issues

It was recently revealed that John Terry's house was burgled after he posted a picture on Instagram of his holiday in the French Alps, alerting burglars to the fact that no one was home. For many, social media is an inevitable part of their personal and professional lives. In this article, we look how to minimise the risks social media poses to your privacy, reputation and security, as well as the legal steps you can take when things go wrong.

John Terry was not the first to fall victim to this trap; it is well known that social media can be used to pinpoint a person's whereabouts as well as providing a myriad of other private information: their close friends and family, their place of work and even their contact details and date of birth. In 2012, the teenage daughter of the CEO of Dell had her social media accounts suspended after it was revealed that many of her posts had GPS stamps on them and other information that undermined the £1.7m her family were apparently spending on security each year.

Your social media policy

Whilst many of us are aware of these issues, the trend towards an increasing online presence makes it difficult to keep your private information secure. One way to manage this is to employ a clear policy in relation to both your personal and professional social media accounts. This should include adjusting your security settings so that only those you select can see your information. Many will remember the embarrassment caused to the former head of MI6 when his wife posted images showing their location on her public Facebook account. Instagram, Twitter and Facebook all allow for high privacy settings and if you intend to use your social media accounts to reveal personal information, these settings should be engaged. It may sound obvious, but a failure to use privacy settings is a common way for private photographs or information to end up in the public sphere. Once your information falls into the wrong hands, the risks range from public embarrassment to falling victim to criminal activity. This is particularly true for children and teenagers, who often use social media as their main means of communication. Parents should be aware of what information their children are sharing online and for high profile or high net worth families, it is important that any security strategy takes this into account.

Regardless of your privacy settings, you need to be careful about what you post online. Physical security is not the only risk: identify theft and cyber breaches are often helped by individuals having information such as their date of birth, address and place of work on the web. It is often the case that this information is not all stored on the same account, but can be pieced together by interested parties. This is more difficult for public figures who cannot always control the dissemination of their private information. Other measures may need to be put in place like online monitoring and regular 'mapping' of their online presence to ensure private information that has made its way online is deleted, changed or taken into account when putting together a risk assessment and crisis plan.

A legal and reputational hazard

There are of course legal risks when you publish content on social media. Press articles are frequently checked for legal issues prior to publication, but this is not the case for the average Twitter or Facebook user. From defamation and harassment to breach of copyright and contempt of court, the risk is out there. It was perhaps not surprising that Katie Hopkins was successfully sued for defamation on the back of her Twitter posts, but she is not alone. In 2011, Sally Bercow paid damages for defamation after her tweet was found by the court to carry an innuendo meaning that Lord McAlpine was a paedophile. This was despite Mrs Bercow including the words "*innocent face*" in the tweet itself. That same year a plumber found himself in court on harassment charges after tweeting that his wife and her boss were having an affair. The number of individuals facing legal action in relation to their social media posts is increasing and will continue to do so as the law adapts to technological changes.

For everyone but President Trump, an ill-judged social media post can also have reputational repercussions. Some might recall the Sunday Times journalist who found himself at the centre of a Twitterstorm after he sarcastically referred to his female critics as "deranged poetesses". He has since deleted the post, but the hashtag is now well-known. It is often the case that content you delete from social media has already been shared or archived. In other words, what you put online could be there forever. When considering the content of your posts, it is important to remember this and to consider your audience. If your social media accounts can be seen by clients, colleagues or professional contacts, you need to avoid professional embarrassment or breaching your employer's social media policy.

When things go wrong

You might take all the steps above and still find that a private conversation or photograph from your social media account ends up in the wrong hands. Content can be surreptitiously shared or hacked and even with the best preparation, accidents do happen. 'Ed Balls Day' is a fairly innocuous example of this but it can be much worse. Additionally, high profile individuals may find that an old social media account they have deleted is found buried in web archives by a particularly persistent fan or journalist. Provided you act quickly when these issues happen, legal action can help prevent further dissemination and in some cases, can ensure the material is removed.

Contrary to popular belief, images lifted from social media accounts without consent can often amount to a breach of copyright. All social media companies have online tools to report these breaches and will delete the images upon proof of ownership. If private images taken by you (or those close to you) are shared or published without your consent, it is important that you report them as soon as possible. An image can go viral on Instagram in a matter of minutes. The longer it takes you to respond, the harder it is to contain the problem.

Additionally where your private information is published online without your consent, those in the EU can usually rely on data protection law to get this removed. The same is true where false information is spread about you, for example by trolls or fake social media accounts in your name. Unless your personal information has been published with consent or for one of the 'special purposes' listed in the Data Protection Act 1998, the law provides a route to request that this information is removed. Social media companies operating within the EU are obliged to comply with these requests and once the General Data Protection Regulation comes into force in May next year, the rules will be even stricter. The same applies to content that has been archived without your permission. Ideally high-profile individuals will use online monitoring to find this content before others do, so that it can be removed expeditiously.

Summary

For many brands and individuals, social media is an invaluable tool and it is not going away anytime soon. However, sharing information online comes with an inevitable risk and users should be aware of how to protect themselves and their families. The tools above can help to mitigate these risks. With a clear and consistent social media policy, awareness of your online presence and knowledge of what to do when things go wrong, you are more likely to avoid a serious problem.

If you require further information on anything covered in this briefing please contact Alicia Mendonca (020 3375 7614), or your usual contact at the firm on 020 3375 7000. Further information can be found on the Brand and Reputation Management page of our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2017

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