• Social Media is like Old School Media — But Faster
  • March 7, 2013
  • Law Firm: Sands Anderson PC - Richmond Office
  • LinkedIn. Facebook. Vimeo. Pinterest. Typepad. Same purpose as newsletters, press releases and advertising (staying in contact with your customers and managing your brand). Same legal issues (copyright and trademark infringement, defamation).  But faster. 

    Many small business owners are intimidated by social media. They think it is hard to learn and may think it is dangerous. But in most instances, the legal issues surrounding social media are the same issues that have always surrounded marketing: Where did you get your content, and do you have the rights to use it?  What can you say about someone else?  What can you do about what your competitor says about you?

    Before you venture in, explore what social media platforms are relevant to your business and have a social media plan.  Because social media is very public, and moves very fast, it is important to have strategies in place early.

    Here are some recommended practices to protect your work product on social media and to steer clear of harming others.

    1.  Protect your trademarks and original material as early as possible.

    Any work you or your employees create is automatically protected by copyright.  But if you ever want to sue someone for infringing your work, you will need a federal registration.  You should also put a copyright notice on your work to clue people in that you are paying attention to who cuts and pastes.  You can make it easy for people to legally use your content by registering with Creative Commons or other content licensing sites.

    Logos and brand names can be protected by trademarks.  If your logo, slogan or brand is an important business asset, you should get a federal trademark registration as soon as possible to be able to stop people all over the country from using a similar name or look, and trying to confuse the customer.

    2.  Make sure you actually own your logo/art.

    When you hire independent contractors to create your logo or web content, the contractor usually owns the copyright to this work, even if you paid for it.  Make sure you get an assignment as part of the original transaction when you hire the contractor.

    3.  Police your IP

    If you want to protect your work product, you need to be aware of who is using it without permission.  When you find unauthorized use, you need to send “cease and desist letters” to tell the infringer that you own this material and they are using it without permission.  You need to think about what remedy you want to seek:  take it down, license it for free, pay to license it?  A non-profit using your material because they like the content may be different than a competitor using it. Fan sites are different, too, and each may require a different strategy.

    4.  Determine up front who owns social media accounts.

    When employees develop Twitter accounts for your brand, who owns the Twitter account when the employee leaves?  The best way to manage these types of issues is to determine when the accounts are opened whether the company owns it or the employee owns it.  Is @Twinkie&under;Donna my Twitter handle and account when I work for Hostess and monitor what people say about our products in social media, or is it Hostess’ account?.  Written social media policies are a great tool. Also, passwords should be shared with a manager and not kept solely by the employee so the employee can’t hold the account hostage after employment ends.

    5.  Have relevant and updated terms and conditions on your web site.

    There are many federal  laws governing what must be on “main street” websites, although many licensed professions have extensive regulations on all kinds of advertising, including use of social media.  Other businesses are subject to general legal principles governing truth in advertising , unfair competition, privacy, defamation and infringement.  Figuring out what applies to your company can be tricky. If you collect information from consumers, you must comply with consumer protection laws.  A B2B site may not have as much regulation.  Sites that attract children have more regulation.

    In considering the appropriate documentation for a website, you should evaluate how the website is used, the sale and supply of products and services and the collection and processing of personal data.  All websites should have some kind of terms and conditions governing the use of the website.  The terms of use should address basic disclosure obligations, include a disclaimer of liability, and provide for the licensing of the website content to users.  Websites collecting information need privacy policies that set out what happens with this information.  Websites that sell anything - goods, services or licences - should have the  terms and conditions of the sale.

    And if you have terms and conditions, be very sure that you follow your own policy.

    6.  Don’t use other people’s work without permission.

    If you see written work or images on the Internet, assume that they are protected by copyright and cutting and pasting will be copyright infringement.  Just posting something on the internet does not mean you give up ownership rights. We have clients that receive demand letters for tens of thousands of dollars for using photographs and other images they found on the web. Here are some sites for free or low-cost images.

    7.  Be truthful.

    Defamation is publishing a false statement about someone that harms their reputation.  You don’t even need to identify them by name.  You are, however, allowed to truthfully say you repair Android phones or sell Lucky brand jeans. You are allowed to purchase online ads based on people searching for your competitor’s brands or products.  You are usually allowed to give your opinion, even a negative opinion.  You are not allowed to use your competitor’s name in making untruthful comparisons, or to try to confuse people to come to your site and buy.  Keywords are ok, metatags are infringement.

    8.  If you have employees, contractors or interns, have an updated social media policy.

    Believe it or not, some of the hottest issues in social media law are in the employment arena.  Vetting candidates via their social media accounts can cause risk for the employer. Determining who owns an account can be dicey after the fact.  Can employees use personal social media accounts while on the clock?  Or from company comtuers?  How much control can a company exert over employee’s use of social media off the job? Social media policies can address these issues up front.

    If you have a social media policy that is a couple years old, it is time to have it reviewed by an employment attorney.  The National Labor Relations Act governs all businesses, not just union shops, and the federal agency that enforces federal labor law says that complaining about a company, supervisor or coworker on social media sites while off-duty can be a protected activity.  There have been a number of social media policies for large companies that have been thrown out, because in attempting to keep employees from disparaging the company online, the policy was overbroad in preventing the employee from making permitted comments about work conditions.  Some employee use of social media is protect, but other uses are grounds for termination.

    9.  Have a social media response team/plan in place

    If you get a bad review on yelp, or a disgruntled customer is making repeated comments on your Facebook page, you should have a plan in place for dealing with it. You need to understand what platform you are working on and how you can turn around the bad publicity.  Many brands have lost control of their message by ignoring disgruntled customers, trying to discredit them, bullying them, or just being clueless about social media. Your disaster team should include your business attorney, because there are often legal aspects to consider.