• Social Media: Where Hidden Potential Meets Legal Risk
  • September 9, 2010 | Author: Alfred C. Frawley
  • Law Firm: Preti, Flaherty, Beliveau & Pachios, LLP - Portland Office
  • Social media sites are here to stay. Businesses large and small, across all sectors, are navigating the hidden potential of using Facebook, LinkedIn, Twitter, YouTube and others as a means of communication, business development and brand reinforcement. Many businesses, Preti Flaherty included, are seeing the benefits of participating in social networking to engage their target audience. As web experts repeatedly say, "Content is King." Your customers, clients and prospects are watching you online, looking to learn about you and engage in conversation. Before creating accounts on multiple Web 2.0 sites, businesses should understand some of the potential risks and legal implications related to posting content online.

    Before your first tweet: Develop your message and stick with it

    The first rule is that if you jump into using these social media tools to advance your business, you must convey a consistent message. Choose a tone of voice which suits your business and which consistently reinforces the value proposition of your goods or services. Equally as important (and often overlooked), a company must be committed to regular posting or updates. If your last post on Twitter was three months ago, you risk conveying that you are not committed to keeping connections with your followers/customers.

    Keeping up with posting: stale content is a credibility killer

    Social media sites are constantly changing and most tech-savvy users are engaging with others via Twitter or by following blogs at a rapid pace. If you decide to deliver messaging via blog, or if you're already blogging, the key rule is to update it regularly. Otherwise, your efforts look sloppy and may seem like an afterthought. You wouldn't run radio spots for Holiday sales in July; in the same way, your last posting on your blog shouldn't be a preview to a new product offering "a few weeks away" if the posting was put up three months ago. If you are not going to create content regularly and consistently, you should probably avoid the effort entirely, because it sends a mixed, and often negative message to your audience. A senior executive may think that she is going to keep up with the content, but unless it's part of their job, it will probably slip in the face of other more pressing responsibilities.

    Copyright laws and Fair Use: when in doubt - link, don't copy!

    In the age of digital content, it is easy (and tempting) to simply cut and paste content from another source. Resist the temptation. Digital content (text and pictures) is subject to copyright law, and the author of the content is entitled to exclusive use of the content. Treat other people's content as you would want your own treated: don't steal it. If you want to repost an article or a picture, ask permission. In most cases, the author will be flattered and give you permission to use it. However, it is legal to link to an article from your blog. You may also quote a small excerpt from an article, particularly if you are commenting on it or criticizing it. That's known as "fair use" under copyright law and is acceptable practice. If you think you are taking too big an excerpt, you probably are. When in doubt, link, don't copy.

    Using social media to endorse your products: Remember, the FTC is watching!

    Social networking sites such as Facebook and Twitter, and many blogs are commonly used to promote products or services. If you plan to ask friends or followers to approve or "talk-up" your products or services, you must be aware of the December 2009 FTC Guidelines covering endorsements or testimonials. Under the Guidelines, endorsements must reflect the genuine beliefs or opinions of the endorser and cannot otherwise be deceptive. In addition, the endorser must be a bona fide user and anything given of value to the endorser. For example, a blogger who reviews a product given to her for that purpose should disclose that it was provided by the manufacturer, and not purchased. Most do not follow this simple rule.

    Social media monitoring: can you control what's being said about you online?

    The short answer is "No." In fact, the saying "No publicity is bad publicity" simply doesn't apply to social networking sites. Digital posts are forever. At the very least, they are very difficult to wipe out, once someone picks up a comment and gives it wider circulation. A flurry of negative or even false comments about you or your company can spiral out of control very quickly online.

    The best way to control this risk is to understand the privacy settings of each social media tool before using it. For example, most blogs allow you to review comments before they are posted publicly and others allow you to turn off commenting tools. Spend some time monitoring how other businesses are using these sites for a week or so before diving in, and read up on the various privacy tools and settings. If your company has a marketing department or a designated person responsible for external communications, that person or department is best suited to keeping the postings on message and to preserve the integrity of the branding message that you are trying to convey.

    Your business should "speak with one voice," and, therefore limit the number of people who are creating content for the company. That said, it is inevitable that some employees will blog (whether from work or home) and there are some simple expectations that should be put into place to control risk. Early on (in 2004), Charlene Li, in a Forrester Report (http://www.forrester.com/Research/Document/Excerpt/0,7211,35000,00.html) set forth six guidelines, which are worth repeating here:

    1. Make it clear that the views expressed in the blog are yours alone and do not necessarily represent the views of your employer.

    2. Respect the company's confidentiality and proprietary information.

    3. Ask your manager if you have any questions about what is appropriate to include in your blog.

    4. Be respectful to the company, employees, customers, partners, and competitors.

    5. Understand when the company asks that topics not be discussed for confidentiality or legal compliance reasons.

    6. Ensure that your blogging activity does not interfere with your work commitments.

    For employees whose job it is to create content, the second, third, and fourth bullets are probably the most important. But for "unofficial" bloggers, each of the bullet points should be observed.

    Thinking ahead: protecting your brand online

    If your business is not using popular networking sites yet,  consider taking preventative measures. If the name of your company or product is distinctive (say, Elmo's Hot Sauce), you may want to register a user account on Facebook, MySpace, Twitter or others just to prevent others who have no connection to you from doing so.

    The world of social media has changed dramatically in just the past year. Spend some time educating yourself or your assigned internal social media expert on the various laws and tools available. There is incredible hidden potential for business development and brand recognition through social media sites. Savvy business owners should do their homework before diving into social media, and keep their employees informed and aware of the risks and rewards.