By Joseph Manna
Social media is about free expression and sharing, right? Uh, not so much. The ideals and interests found in social media and content publishing can sometimes conflict with laws and legal interpretations and land content creators in hot water. While at the New Media Expo (NMX), I learned about three major areas where publishers need to be cautious if they don’t want to be on the receiving end of a lawsuit.
In the interest of full disclosure, these thoughts are purely my own individual interpretations of the content delivered at NMX. None of this information should be construed as legal advice. For legal guidance, I recommend consulting with an attorney who is familiar with your specific legal needs.
The panelists, Brian Wassom, Gordon Firemark, Kyle Durand and John Corcoran, presented their ideas in three areas: social media policymaking, consumer protections and intellectual property. The 30-minute panel was fast-paced, but touched on some of the most important legal issues affecting content creators today.
Using other people’s content is a great way to engage readers and raise awareness of yourself, your brand and your business. Creative marketing involves making use of licensed content and, as a navigator of the interwebs, you should get comfortable with the legal implications of using licensed content. The spirit of this isn’t to instill fear; it is about understanding the impact of legal matters for you and your business.
Use a well-understood social media policy and make sure it’s enforceable.
Many entrepreneurs and small business owners choose to contract with people for their social media management or engagement, as can be seen in the recent case that was settled between PhoneDog and Noah Kravitz years after the initial dispute. The dispute came down to an employee who interacted on behalf of the business who later quit; the disagreement came down to who “owned” the followers/fans from the brand. Developing a sensible, fair and enforceable social media policy from the start may have prevented this conflict from happening. As an entrepreneur, you need to make clear with your employees and clients just who owns your content, as well as how to remedy disputes, should they come up.
Do keep in mind that asking for employees’ social media credentials is not only in poor form for employers, it can also be grounds for a hearty discrimination lawsuit.
Always be honest about your products, services and endorsements.
Our friends over at the Federal Trade Commission (FTC) have a lengthy list of rules and guidelines to ensure that consumers are not deceived, defrauded or otherwise mislead by a company’s business practices. Recently, they made updates to the Endorsement Guidelines prohibiting undisclosed endorsement from paid engagements. While the blogosphere reacted vociferously, the intent was to put larger businesses on a short leash from buying the opinions from content publishers. (And if they did, it must be plainly communicated to readers about their material relationship with a sponsor.)
But it’s more than paid endorsements. The FTC regulates all forms of advertising and has the teeth of the Department of Justice behind them so they can take swift action when needed to squash predatory sales and marketing practices. As such, all product descriptions, promotions and even social media claims must be accurate and truthful. For instance, it would be an unfair and/or deceptive business practice to purchase fake Facebook fans or Twitter followers because the FTC considers a “Like” or a “Follower” as an endorsement from a real person. If the Follower or Like is fake, a brand may be held at risk for further legal action.
Get permission to use licensed content, except for newsworthy situations.
Intellectual property is a big topic because it involves copyright, fair use, trademarks and publicity rights of people. We know that it’s not nice to hotlink images from another site and we know it’s problematic to simply use a “Google Image Search” for your content’s supporting images. Using published images across social media, attribution is not enough. As a publisher, you need to gain explicit permission to use one’s images even if they are public. This is exactly what Instagram affirmed multiple times with their policy update, users own their published images along with all the rights to them. If someone uses your images, they had better ask you first. A great place to find free images that may be licensed for reproduction, sharing and even modification can be found at the Creative Commons.
There is an exception to this, though. If an event was of public interest, like an airplane landing on the Hudson River, permission is not required unless otherwise stated not to reproduce the image. Also making use of a company’s trademarks can be permitted so long as it’s in a nominative fashion. I’ll be honest, it gets a little fuzzy from here, though. Simply put, it’s okay to use another company’s trademark as long you’re doing it in a way that does not cause confusion in the marketplace.
It’s a good idea to develop a relationship with an intellectual property attorney, as well as one who is familiar with labor laws. This is especially true if your strategic marketing plan includes content creation, syndication or use of other people’s content. Also realize, that as a business, you’re at increased legal risk and exposure if you use other people’s content for marketing and sales purposes. Play it safe now so you won’t be sorry later.