A Legal Obligation to Monitor your Social Media Pages?
Many of us are aware of the popular myth that ostriches believe burying their heads in the sand will make them invisible to predators. In other words, an “if I can’t see you, you can’t see me” approach. Even though scientists will tell you that this is not true, the approach seems to bear a resemblance to the online behaviour of some humans. Many of us have a false sense of security and anonymity when we sit behind a screen and publish or comment on social media, despite the fact that this content can often be viewed by anyone.
This begs the question: is there a legal obligation on a person or a company to monitor posts on their social media accounts?
However, are everyday users of these social media platforms also providing information system services by creating their own “mini” public platforms on these sites and, depending on individual privacy settings, allowing other people to post or comment on their profiles? It is plausible that the courts would apply the same principles as, for instance, those set out in ECTA to these personal social media platforms. In other words, there is no general obligation for individual users to monitor their social media platforms or to look for harmful posts, but there is an obligation to remove harmful posts when becoming aware of them or requested to remove them.
If a person’s “knowledge” of a post is one of the determining factors in establishing liability, how is it determined that a person had knowledge of the post? When a person is tagged or mentioned in a post, is it sufficient to assume that she/he had knowledge of it? Depending on a user’s settings, the user may receive email or push notifications of posts in which they were tagged or mentioned. However, not all users activate these alerts and may only become aware of the post once they log in. Even then, with hundreds of posts to sift through, it might be easy to miss, or not pay attention to, a post in which they were tagged or mentioned.
Notwithstanding these challenges, if someone was active on the social media platform after the harmful post was published, it would be difficult to claim that she/he was unaware of it.
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