Presentation on Social Media Law by Glen Gilmore (@GlenGilmore) at ConvergeSouth 2013, Greensboro, North Carolina, 11 October 2013
Glen Gilmore is a social media strategist who has provided customized social media marketing training to members of the Fortune 500, teaches Digital Marketing, Crisis Communications, and Social Media Law at Rutgers University. And in case that sounds
DISCLAIMER: This is NOT legal advice! (Starting right out with risk minimization!)
Do you know who your regulators are? Do you think of the Federal Trade Commission? Well, yes, they do in fact have social media regulations.
Social media is a lot of fun until the lawyers show up. You can’t unshare: someone is always listening. Deleting doesn’t protect you. Common sense has to be your first guide.
Even Courtney Love ended up having to pay out $430,000 for defamation against a fashion designer on Twitter. Fame doesn’t protect you.
Can you get in trouble for a retweet? A British Lord sued everyone who tweeted and retweeted a slanderous accusation about him. He was successful in a number of the cases.
There is a distinction between sharing content and images. Most authors are delighted to have you share their content, but not always the same for images.
What about “freedom of speech.” That right really involves your interactions with the government, not your employer. You are most likely an employee “at will,” meaning you can be fired for what you post on social media.
It is essential to have a social media policy for employees, but it’s more complicated than ever to come up with a good one. The National Labor Relations Board has become more aggressive about protecting the rights of employees to speak out about certain conditions. Vagaries like “be respectful” can actually violate the NLRB act! Even prohibiting “sharing confidential information” can be too vague to be enforced. You can’t say that employees can’t say anything “negative.” Again, too vague to be defended.
A business needs to have a social media response matrix in place. Employees need to be trained how to assess and respond.
Remember the famous case of @PhoneDog_Noah in which a company he left claimed his account had business value to them, and sued to try to retain his personal Twitter account.
- Address account ownership in your policy
- Create a separate agreement for ownership of accounts (make clear what accounts belong to the company)
- Address legacy and partners as well
A word about brand squatters
Brands need to be diligent to monitor their brand on social, and claim their brand across all social networks. Coca-Cola waited to get on Facebook, and in the meantime fans created a Coca-Cola page that got 3 million followers. Coke was smart and instead of suing, flew the creators to their headquarters and negotiated a friendly takeover. Not always smart to attack your fans!
Copyright vs. “Fair Use” vs. Public Domain
Copyright work use without permission is limited to “fair use.” A grey line, but depends on how much you used and for what purpose. It’s always a risk analysis. Even a signed release when you use someone’s image is not an ironclad protection, but still a good idea to get one. It can at least protect you in many states from a “frivolous lawsuit.”
The Communications Decency Act, Section 230, protects providers or users of social media from being liable as the publisher or speaker of any information provided by another information content provider. This is the legal “magic bullet” that protects Twitter and Yelp.
But…journalism and professional protections don’t extend to people blogging. Just because you blog about health doesn’t mean you’re a doctor. Some states recognize a “right of publicity” which protects celebrities from having their images used for commercial purposes.
FTC Endorsement Guidelines
16 C.F.R. Part 255, applies to when a content publisher, such as a blogger, has a relationship with your company and/or has received some compensation or consideration for their work or review. Core principles:
- Duty to disclose “material connection”
- “Clear and conspicuous” disclosure
- Duty to monitor for compliance
- Duty of compliance rests with the sponsor
Example: bloggers invited to a company event can win prizes. The sponsor puts up a sign telling the bloggers to disclose that they had a chance to win a gift. If the sponsor doesn’t follow up to make sure all bloggers complied, they could be held liable.
Thou shalt not “astroturf.” Astroturfing is where employees, or even interns, post reviews, even on their personal accounts or sites. Nike had its UK Twitter campaign banned because an employee tweeted the campaign without disclosing his relationship to Nike. And the disclosure can’t just be in your account bio.
The FTC says the disclosure must be in “close proximity” to the content. For a platform like Twitter, where you only have 140 characters for the entire content, how would you do that? After the session, I asked Glen if putting the disclosure in a separate tweet immediately after the content tweet would satisfy “close proximity.” He said no, it had to be in the tweet. He suggested using a hashtag like #ad or #advertisment or #sponsored. He said, though, that it is still unclear if even those would protect you.
What about HIPAA?
(Health Insurance & Portability Act)? A retweet can actually violate HIPAA regulations against sharing health information that is identifiable as being associated with a particular person, or even that the case happened in your institution. For example, a clinician at a hospital was fired after she shared about a case even though she did not name the patient, because the court ruled that she identified the particular injury and that it was a patient in her hospital. Mayo Clinic is a good example of a health institution with a very good social media policy.
If you design mobile apps, you need to bake in privacy and security. The FTC has gone after developers, inventors, and even marketers of apps that violated this.
Contests, sweepstakes, and lotteries are regulated differently by states and by platforms.
Your guiding principle in all this: Transparency. Use common sense!