POSTED BY Micah-Shalom Kesselman

On November 14th, Suffolk’s Intellectual Property Concentration will be hosting a conference titled Emerging Issues in Social Media Liability.  Social media has continuously increased in significance and ubiquity for years now.  Whether it is Twitter, Facebook, LinkedIn, Instagram, SnapChat, or any other of the myriad social media platforms that pervade one’s everyday life, chances are that every person reading this is on at least one social media network.  Because of social media’s vanguard place in our current world, however, the risks of using it loom large.

This is not to say that social media’s value is outweighed by its risk.  It is an invaluable tool to start up and established firm alike.  Smart use of social media allows companies to keep tabs on the pulse of their customer base, startups to go viral and gain traction in a way heretofore unseen, and build a relationship between the executives of a company and the public with greater ease than ever before.  At the same time, each advantage is counterbalanced by risks that arise from the very function of social media that provides it with its ability to be a force multiplier.

While social media platforms allow companies to track trends in their consumer market, its prevalence, combined with the sheer number of platforms in the field, lead to serious cyber security risks for the consumer.  De-anonymization through social media platforms is of growing concern.  The precise contours of liability associated with this threat, however, are unclear.

Companies also have the potential to do more harm to themselves than good when it comes to attempting to build a relationship with their customers.  Inept use of social media, whether intentional or not, can have dire consequences on a firm.  The extent of liability that can be imputed on a “social media manager” has been explored only minimal.

The celerity of information’s dissemination through social media also highlights the heightened danger of false or inaccurate information in the new paradigm.  Rumors have never been as quick to spread and, as a result, as potentially harmful to a company’s future as in today’s world.  Even accurate information, when leaked over social media, can quickly destroy a well thought out marketing strategy.

Furthermore, the precise rights granted to a social media platform, even with their sprawling consumer contracts, are not quite clear.  There are serious questions about whether a social media platform, though acting in accordance with the contract all its users sign, can engage in conduct so egregious that it leaves itself open to civil liabilities or worse.  Not only that, but even whether such contracts are at all enforceable is still up for scholarly debate.

While a lot is still unknown in regards to the risks and liabilities associated with social media, everyone can be sure that many of these questions will have to be resolved sooner or later.  It is unlikely that there will ever be a one-size fits all solution that comes forth from any single source of law.  Most likely we will see a slow crystallization of the norms and concerns emerging in this new landscape so pervaded by social media.  It will happen by legislatures at all levels, by evolving case law, and, ultimately, by evolving social norms, for better or worse.

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