Social media and the way people transact and interact online in general will likely result in shaping future laws.
This is according to Nerushka Deosaran, an associate specialising in technology at law firm Norton Rose.
Deosaran says while online tools, and social media in particular, may be seen as just more channels for communications and business, there are some areas that are not clearly covered by law yet.
For example, she says, when social media marketing is outsourced to a third-party, the ownership of the resulting “likes” and customer data may be ill-defined.
The onus is on the company and its outsource partner to clearly define in their contracts who will own this IP and where it will reside, she explains.
These contracts will also need to clearly define who will be liable and how a situation is resolved if a company tasked with social media interaction posts a notice or Tweet that reflects badly on a brand, resulting in reputational damage, she adds.
When it comes to marketing interactions, Deosaran says, when social media users “like” a company or enter its competitions via social media, how their information may be used by the company is not clearly covered by law as there is no data protection specific legislation in SA.
Deosaran says the use of personal information by companies “liked” by Facebook users, is still a subject of philosophical debate. As new analytics tools come to market allowing marketers to mine information gleaned from their social media followers and use it for targeted marketing, some may question the ethics of this. But whether it is permissible or not is open to debate.
Deosaran says when users have chosen to make their information public on a social media forum, it would be difficult to argue that marketing to them violates their right to privacy.
“There are no South African laws specifically focused on online and social media marketing and competitions,” she says. “They would fall under existing laws, standards and guidelines for marketing and competitions.
Deosaran also points out that a company collecting information about friends and fans via social media should, however, make the terms clear - as with any promotion or competition.
In terms of the Consumer Protection Act, she concludes, the terms of a competition must be visible and presented in plain language; and the consumer must be able to opt out of the competition and from further marketing communications.
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