April 19, 2011

Social Media and the Law: What Associations Should Know About Networking Sites

4 min

Former Venable associate Mikhia Hawkins originally authored this article.

The ubiquity of social media, in particular social networking websites, is undeniable; it is now entrenched in the world’s media landscape.  Social media sites such as Facebook, Twitter, LinkedIn, and blogs are gaining new users at a dramatic rate, and are being used not only for casual, social interaction, but also for public relations, marketing, educational, political, and various other purposes as well.  The viral and generally informal nature of social media makes it an effective way for associations and other organizations to convey messages relevant to their mission and agenda, and to market themselves to a broad audience.

However, utilizing social media can raise legal issues for associations.  Organizations must be aware of such issues in order to guard against liability risks.

Public Relations / Advertising

  • Public relations and advertising campaigns involving social media must comply with applicable laws and regulations.  The law generally treats public relations, advertising, and marketing campaigns conducted through social media just as it does campaigns conducted solely via traditional media.  The backbone of federal consumer protection law is the Federal Trade Commission (FTC) Act, which prohibits unfair or deceptive acts or practices in commerce and, under certain circumstances, applies to non-profit organizations.  Organizations should also comply with legal standards applicable to endorsements and testimonials, including the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which were amended in December 2009 to – among other things – clarify how the guidelines apply in the context of social and other “new media”.
  • Most states have statutes modeled after the FTC Act, known as “mini-FTC Acts”.  States may also (or alternatively) have general false advertising laws, or prohibitions of specific types of deceptive and misleading conduct, such as misleading advertising of price comparisons or sweepstakes promotions.
  • In addition, some social media sites have terms and conditions with provisions specifically regulating public relations, advertising, and marketing campaigns conducted on the site.

Terms and Conditions of Social Media Outlets

  • Social networking websites generally have terms and conditions in place that govern the use of their sites.
  • If an organization creates and/or administers its own social media platform, such as a blog or podcast, it should have in place terms and conditions governing use of the platform and should make the terms and conditions readily available to potential users.

Employer-Employee Issues

  • Organizations should have reasonable policies and procedures in place concerning employee use of social media to minimize exposure to liability for the statements of employees.  In particular, organizations should prohibit employees from making negative comments about a competitor, and should implement reasonable controls over employees’ use of social media to prevent them from making misleading favorable statements about the organization.
  • Organizations should also proceed with caution when using information gathered from social media in screening prospective employees.

Other Legal Issues Relating to the Use of Social Media

Other issues that organizations utilizing social media should be cognizant of include:

  • Protecting the organization against legal liability stemming from third-party user-generated content posted through social media in connection with a public relations, advertising, or other campaign conducted by the organization (including liability for libel, copyright infringement, violation of one’s right of privacy/publicity, deceptive advertising, trademark infringement, or other violations).
  • Compliance with privacy and data security laws when collecting and using data from individuals.
  • Ensuring that social media content does not lead to trademark or copyright infringement, whether through content provided by third parties or the organization, and taking steps to shelter the organization from any liability stemming from infringing content provided by third parties.

Mikhia Hawkins is a former associate in Venable LLP’s regulatory affairs practice group.  He counsels clients of various types with respect to consumer protection and unfair competition matters, including legal issues related to all forms of advertising, sales practices, product or service development, consumer financial services, warranties, promotions, and consumer privacy.

This article was originally published on the Association TRENDS blog, Media Matters.