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Kristen Porter: how to avoid social media pitfalls

It’s easy to get caught up in social media, counting followers, likes and interactions. But what we often forget is that we don’t own the platforms. In fact, we don’t even own the accounts.

Which is why I believe it’s in our best interest to move our audience off socials and onto another channel, such as text or email. Still, it’s unlikely any of us are moving away from social media any time soon, so here are a few things to keep in mind. 

Is there a general rule of thumb when it comes to what should and what should not be posted on social media?
You must have policies and procedures in place, especially for your admin and junior staff to follow.

Regular health checks on your whole agency, but in particular audits of your social accounts and profiles, are critical.

Also check if you are using outsourced content creators – who owns the content that is being created? Copyright laws say the person who created it owns it, but does your contract with them ensure that’s been assigned to you?

How are businesses responsible for the comments posted on their social media channels?
Technically, we are all considered publishers, simply by posting on our social media pages, and the court has confirmed this.

That means you could be held liable for any defamatory comments written by someone else on your company’s social media platforms. So it’s absolutely critical to properly moderate and remove offensive comments.

If you don’t have the resources to properly monitor and moderate, then comments should be turned off. It doesn’t matter if it wasn’t you, or you didn’t see the comment – it’s out there.

Reviews – good, bad, and fake. What are the rules?
Don’t add fake reviews. Misleading and deceptive conduct land under consumer law and the fines are high – it’s not a scare tactic, we are talking millions of dollars.

You can incentivise reviews generally speaking – but you can’t incentivise those with good experiences only – it must be equal otherwise we are back in deceptive and misleading conduct land.

Don’t remove negative reviews – again, if you do this, we are misleading and deceiving as we are not painting an accurate picture.

Instead, what I see as best practice is commenting on those reviews by being really genuine that you were sorry they had that experience and taking their comments on board. If they are absolute rubbish and don’t paint an accurate picture of what happened, comment and show others what actually happened – again, by being genuine and not ratty about it.

What’s the difference between defamation and slander, and why is it important in business?
Slander is generally achieved through spoken words, in other words, something that isn’t out there forever in publication. Defamation is the term more often used but we need to remember that this is only used for humans, so defamation is not usually available to companies.

I have clients come to me all the time saying my agency is being defamed. Unfortunately it’s different for companies and that is called injurious falsehood, and with that you actually need to prove loss has arisen, which is different to defamation where you just have to show the defamatory conduct.

What should be included in an agency’s website disclaimer, and terms and conditions?
The main thing I focus on here is protection of your copy and creative on your website, such as property images, so someone can’t just come along and cut and paste it, essentially stealing your stuff.

In relation to disclaimers, it’s always best practice to include them on any educational or informative blog posts, to the effect that you are not financial advisors or valuers, and this is general information only.

Where should agencies look and what information should they seek out when setting up their social media and digital channels?
As I mentioned, each platform has its own rules. You need to make sure you are correctly using the business and personal profile types otherwise all your hard work in growing your audience on a profile could be for nothing if it gets shut off for misuse.

For your staff, it’s a good idea to set up profiles for them, but be clear you own them, so when they move on, they can’t take them with them. This is a bit harder for established agents who bring large audiences with them – but very good for junior staff, especially if you are the one developing their talent.

One last piece of advice
I think we often feel we need to do everything ourselves. My biggest piece of advice is this isn’t true. It’s really important to surround yourself with the right team, either internal or outsourced.

For example, I have outsourced most of my social media management because I know I don’t have the time to dedicate to it properly and it’s not my skillset.

I still do all my own commenting and interacting because part of our values statement is that we live and work in integrity.

But you don’t need to do this stuff on your own. You are busy running your agency, selling homes, managing properties – you can’t be expected to stay on top of all of these laws and platform rules yourself.

So my biggest takeaway is – get the right team around you so you can focus on doing what you do best.

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Kristen Porter

Kristen Porter is a legal practitioner specialising in real estate, property management and privacy laws. She is the founding Director of O*NO Legal The Real Estate Agents' Lawyer.