Digital territory – treading with caution

A study by World Wide Worx and Fuseware revealed that Facebook is being used by about 13 million South Africans, which is a quarter of the country’s population.

All these people have the means to write, publish and circulate articles and video recordings faster than newspapers and television stations.

The downside of social media

This uptake in social media has, however, landed many individuals in hot water for posting defamatory content or offending a certain group of people. As a result, there has been a global increased focus on social media liability.

With a burgeoning number of social media users and exponential increase in social media activity, more and more businesses are taking advantage of the commercial benefits of social media. However, consumers are relatively unforgiving of businesses and users that overstep the boundaries of morally or ethically acceptable behaviour.

The instantaneous nature of social media means that stories are circulated to large groups of people within seconds. South Africans also have greater awareness of human rights given the history of the country and it could therefore be argued that they are more likely to take legal action when they feel they have been offended.

There are numerous examples where businesses and individuals have found themselves in trouble within social media communities for saying something they believed to be without any malicious or offensive intent, only to have it interpreted in the wrong way. While most social media users make statements that are not meant to cause any harm, they can lead to complete public outrage, which can have devastating consequences for the individual or business concerned.

Avoid falling victim

Litigation in these matters may not be readily apparent at this stage, but awareness is growing and brokers should start educating themselves about these cases – even if only in an effort to avoid falling victim in their own personal or professional capacity. With defamation claims being relatively uncommon in our market, it is important that brokers have the bigger picture in mind when it comes to the new exposures brought about by social media.

While elements of social media liability insurance for businesses may be embedded in some liability policies like cyber, professional indemnity and broad form policies, consumers have remained largely unprotected.

Making cover a priority

In light of this, social media products that consumers can purchase to cover the legal fees associated with defending themselves against allegations of privacy invasion or defamation of a third party via social media should become a priority.

The product should be aimed at individuals in their personal capacity and purchased directly from a broker. First and foremost, the policy should provide cover for legal defence costs, ensuring that the accused party has access to proper legal counsel. In addition, should the policyholder be found guilty of defamation or invading the privacy of a third party on/via social media, the policy should cover the award made by the court (subject to certain exceptional circumstances that may be excluded from cover).

It is however also the responsibility of the individual to remove the offensive content from the internet or platform as soon as any such allegations are made. Any defamatory comments relating to race, culture or religion should not be covered under the policy.

While someone may only have good intentions at heart for a social media post, one has no control over how it is going to be received by the general public and once the post is taken out of context it can easily be blown out of proportion and have devastating consequences for the user.

Clients should of course double check any content they publish in their personal and professional capacity but they should also be speaking to their brokers about social media insurance.