Posting to social media sites could bring rather unwelcome responses

The recent outcry over companies "spying" on their customers via social media raises a number of interesting points about individuals' growing power to make their voices heard online.

While there is no legal problem with organisations monitoring for customer complaints online, many individuals will be unaware of the lengths businesses are taking to make sure their reputation is not tarnished.

One of the fastest-growing crazes in recent years has been for people to publish information - either negative or positive - online via social media sites, such a Facebook or Twitter.

In response, firms are taking a far more proactive approach to monitoring their reputation, brand and revenue stream by identifying negative and/or untrue posts, articles, blogs or reviews online. The extensive sharing of information on social media sites is something firms are increasingly monitoring, but this inevitably has implications for personal privacy.

The use of social media is growing at an incredible rate. It should come as no surprise that companies are using this form of media to connect to their customers. Businesses are using software to scan for negative comments about them on sites such as Facebook, Twitter and YouTube and other forms of social media, including blogs, news feeds, forums, message boards and chat rooms. They are also employing external reputation monitoring services to keep track of their online reputation.

Other companies are likely to follow this trend as more monitoring software is produced.

In addition to monitoring online reputation, the practice of scanning social media sites as part of the recruitment process for companies is now becoming routine. Employers are also using new software to monitor posts made by employees on social media sites. Many now have a dedicated resource to look up employee posts on a daily basis.

Although privacy campaigners have accused companies using such software as "spying", companies that monitor social networking sites are legally permitted to do so, provided the content viewed on an individual's social networking page is classified as public. As the information is voluntarily posted by the user themselves, it can be argued that use of that information does not constitute a violation of their right to privacy.

It is, therefore, increasingly important for posters to check their privacy settings.

But should social media users be more savvy about the impact of their online views?

Because the internet is an open environment and digital comments can have real-life consequences.When users of social media sites complain about a company via a public forum, they may be contacted by the company regarding that complaint in order to remedy the position. If a social media user does not want their complaint to be seen by third parties their privacy settings should be updated accordingly.

An individual using a social media profile to make untrue and malicious statements about another company or individual may be liable for defamation. This can be the case, even where the publication is merely to designated "friends".

There is a lot of evidence to show that false profiles are commonly created on social media sites. In most cases, the potential claimant is usually satisfied with the offending content being removed if they do not have funds to pursue the matter. However, more cases are going to court regarding defamatory content.

If a defamatory comment is made, it will often be made anonymously. In various recent cases in England, lawyers have managed to get around the problem by obtaining court orders requesting Facebook discloses not only the registration data but also th IP and email addresses of the individual which created the profile on which the defamatory content was included.

Users of social media must also consider the personal information they may be posting about third parties. In particular, photographs can be uploaded to a user's profile and tagged with the name of those featured in the photo without their knowledge or consent. So users should bear in mind that uploading information about other individuals might impinge upon their privacy and data protection rights, so consent should be gained in advance.

The UK Information Commissioner's Office has published a general guidance note on how to use social media safely, with tips and warnings about posting personal information to such sites, at: www.ico.gov.uk

Alison Bryce is a partner in the intellectual property and technology team at Maclay Murray & Spens LLP