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Who controls your social media sites?

Sarah Stowe

The current prevalence of social media has required both franchisees and franchisors to reassess their respective roles and rights relating to the use of such technology.

I recently read the following statistics about the use of social media: every 60 seconds –

  • There are more than 695,000 new status updates, 79,364 wall posts, and 510,040 comments made on Facebook
  • More than 320 new Twitter accounts are created and 98,000 tweets are sent;
  • More than 100 new LinkedIn accounts are created;
  • Over 600 new videos are uploaded to YouTube;
  • Tumblr receives more than 20,000 new posts; and
  • More than 60 new blogs are created and over 1,500 blog posts are made.

No matter how you feel about this new medium of communication, you have to agree that’s a lot of activity for a one minute period.

In order to capitalise on the popularity of social media, many franchisors have implemented marketing strategies using such platforms as a Facebook wall or Twitter feed. Similarly, franchisees have started using their personal social media accounts to help advertise and promote their own businesses.

Because the brand or public image of a franchise system is often where its inherent values lies, franchisors have always exercised strict control over advertising. Many franchise agreements were drafted so franchisees could not undertake their own local marketing without the franchisor’s prior approval and this was easy to enforce when advertising was largely print-based.

Now though it is much more difficult to exercise control over the multitude of online activities relating to a business.

The recent case of ACCC v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74, taught us that a business may be held liable for false, misleading or deceptive comments posted on the business’s Facebook page by third parties. This case has alarming and potentially far-reaching repercussions for both franchisors and franchisees.

The use of social media also allows franchisees (and all employers) another avenue to access information about their employees and raises issues of privacy and an employer’s ability to supervise their employees’ conduct outside of work.

Consider the case where a staff member calls in sick but the employer then finds information posted online indicating the employee was not in fact unwell. Is the employer entitled to use such evidence in order to discipline or even dismiss the employee?

This infamously happened in 2007 to an American bank intern named Kevin Colvin, who was fired when his boss found pictures and Facebook comments showing Colvin was at a party after he had emailed his boss advising he had to travel interstate for a family crisis.

There are countless other considerations to be addressed, including:

  • Whether employers can use material posted online to assess or reject a potential job candidate.
  • Whether employers can discipline or terminate an existing employee for material the employee posted online about the employer or the job, or which is simply distasteful or may cause damage to the brand.
  • Whether employers can prevent employees from accessing social media sites at work or on their company-owned computers or mobile phones.
  • How franchisees and employees can be prevented from posting confidential or proprietary information on social media sites; and
  • How individuals can be prevented from using social media to harass, bully or vilify other staff, other employees, their boss or the franchisor (and vice versa).

As social media and social networking continue to transform our methods of marketing, communication and transacting, franchisees should do what they can to put safety measures in place, by developing and implementing appropriate social media policies for employees and monitoring and limiting what is posted online about their businesses.

Franchisees should also lead by example, by only using social media responsibly and within the confines of what is permitted under their franchise agreement.

Franchisors should ensure franchise agreements, operations manuals and policy documents are updated to deal with the use of social media and other advanced technologies.

Esther Gutnick is senior associate, Mason Sier Turnbull Lawyers