Social Media and the Law

This past weekend, I had the opportunity to address a MetroNorth Chamber of Commerce gathering of new and potential business owners.   The topic?  “How to Market Your Business Via Social Media – Legally.” 

As an attorney whose main areas of practice are business, real estate and estate planning, how do I get mixed up in the developing area of law focused on social media?  Easy; I am one attorney who actually uses social media to market my practice. 

More and more businesses are, like me, discovering the power of social media as a business marketing tool.  For the doubters, I show them Erik Qualman’s “Social Media Revolution”  video which contains some rather startling statistics about how dominant social media has become, and why the business which is serious about growth must include a social media strategy as part of its business plan.

So, you ask, what are the legal issues involved with social media (and by social media I am referring to sites like LinkedIn, Facebook, Twitter and Foursquare, as well as blogging).  My friend Jennifer Kane  of Kane Consulting Group  (who happens to be, like me, an advisor with the Next Stage Business Radio Network), and I just discussed this topic last week.  Jennifer referred to “three buckets” when it comes to legal issues surrounding social media, and I suggested a “fourth bucket.”

Here are our “four buckets” which roughly categorize the legal issues which arise from the use of social media:

1.     Traditional Intellectual Property:  I tell people that social media is, in some respects, no different than “old media” marketing techniques such as magazine articles, television and radio.  The same rules related to improper use of another’s intellectual property (such as a registered trademark or copyrighted work) still apply.  Thus, for bloggers, do not take someone else’s work and publish it on your blog as your own without credit.  That is nothing more than plagiarism, and it is actionable. 

2.    Online Reputation Management:  This is a fancy way of saying that defamation and privacy law apply online.  I wrote a few weeks ago about the legal definition of defamation, and an alleged defamatory statement made on someone’s blog or Facebook page about another is run through the same test. 

When it comes to enforcement, however, online defamation is a bit trickier to deal with than a false and defamatory statement made in a newspaper or radio broadcast; in those mediums, a retraction is much more straightforward (although there is no guarantee that everyone who heard the original false statement was paying attention to hear the correction/retraction/apology).  In cyberspace, the lawyer’s efforts to curtail the defamatory statements are often not only ignored, but they are openly mocked by the alleged defamer. 

Case in point:  the now infamous “unicorn meat” debacle involving, the National Pork Board and its attorneys, the law firm of Faegre & Benson.  Thinkgeek runs a fake product ad every April Fools Day, and 2010’s offering was “canned unicorn meat, with extra sparkles.”   The original ad went so far as to include a recipe; it also included the phrase, “unicorn – the new other white meat.”  It was this last slogan that raised the hackles of the National Pork Board who subsequently instructed their attorneys – Faegre & Benson – to send what became a twelve page cease and desist letter to  Guess where the letter ended up?  Yep, you guessed it, published on the website  with much teasing for sending a cease and desist letter over an obvious parody.  I also understand from some of my friends in the meat industry that the Pork Board was not looked upon favorably for taking this step, and that’s the dilemma with defamatory statements made online (whether on a website or via Twitter, Facebook or someone’s blog):  will the attorney’s letter make the problem bigger?  For some, the answer is yes, and these people choose to create positive content designed to push the negative further down in the pages of Google so as to minimize their impact.  Suffice it to say, it is a tough call to make.

3.     FTC Guidelines on Internet Advertising for Blogs:  The Federal Trade Commission (“FTC”) has promulgated guidelines  for bloggers who include product endorsements within their sites or even their posts.  The FTC’s concern is, of course, that people assume that the blogger is promoting these products and/or services because they use them themselves and enjoy them; in some cases, though, bloggers are paid to provide these endorsements.  In these cases, the FTC’s guidelines say that the blogger must disclose that he/she is being paid to endorse said product or service.

4.     Social Media Usage in the Workplace:  More and more companies are adopting formal, written social media policies  (either as part of their employee handbooks or as standalone policies).  These policies are allowable given that any social media activity happening in the workplace would be on company time and with company equipment, and are becoming an integral part of a company’s employment/personnel issues.  For example, my law firm’s policy prohibits staff from using social media sites during the workday, but the attorneys (who are using these sites to promote their practices and the firm in general) are allowed access.  This policy was chosen not only from the standpoint of use of company time and resources, but also to ensure that those speaking on behalf of the firm on a regular basis were those attorneys who comprise the firm.

There are other, related issues that arise when it comes to other methods of online marketing that work in tandem with social media (such as terms of use and privacy policy for someone’s website and the CAN-SPAM Act  which sets forth restrictions on email marketing) and the body of law becoming known as “social media law” is every evolving.  Hence, before taking any steps to implement a social media marketing strategy, businesses would be wise to consult with an attorney to ensure compliance with all current local, state and federal laws and, if not, what to do to ensure compliance.  I would add, though, to consult with any attorney who understands social media and actually uses it (and I may know someone that fits that description).