Managing Your Business

With These 6 Steps, Your Company Can Embrace Social Media and Avoid Legal Liability

October 26, 2022
5 minute read

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The social media landscape is always evolving, and it’s dotted with stories of companies getting into trouble. These following few examples should not scare you away from using a valuable tool to engage with your customers. If you follow these six steps, you can avoid most headaches.

1. Make Sure You Own and Have Access to Your Own Channels

            Did someone’s 15-year-old nephew set up your company’s social media pages? Was it an employee who recently left? An outside agency? It should be obvious by now, regardless of who set it up, but you need to make sure the company owns and controls the social media profiles you use.

            Most social media sites allow you to have more than one administrator. You should always have at least two trusted employees designated as such. When one of them leaves, or is about to be fired, the remaining administrator changes the passwords to lock out the departing administrator and finds another suitable back up. The same thing works with your outside marketer — make sure someone (preferably two of you) are co-administrators so you can always have access to the social media account.

            If it’s too late, and someone has control of your page or group, the first step is the same we give our children — ask nicely. This applies to the departed employee and the social media platforms. Obviously, if you can’t locate the employee or they refuse to give up access, you must approach the social media networks. The problem is, historically, they are not nearly as concerned about your page as you are, and therefore are not quick to act.

            If all else fails, your last resort may be the courthouse. The law is not settled in this area and there have only been a couple of high profile cases involving LinkedIn and Twitter, which had more to do with who owned the followers and connections. If it is clearly a company asset, however, a judge is likely to help you get control of it.

2. “I copied it from the Internet” is not an excuse. Don’t steal online content.

            The best policy is to not allow any images or content not created by the company to be used on company channels. The second-best rule is to use licensed content that gives you perpetual use of images or content. Third, ask permission — often a saved email will do, assuming you have permission from the right person. If you still can’t resist and want to use a meme or viral photo, you better hope your use falls under the copyright fair use doctrine.

            Fair use is a factually-specific inquiry and there is no bright line test. Courts consider whether the use is commercial or non-commercial, whether the copied work is professionally-sold material or generally available content, the amount copied, and whether your use lessens the commercial value of the copied content.

            Anyone who has told you there is some hardline percentage you can copy from an article or song, or that you can always use images from certain social media platforms, is just wrong.

3. Know the platform’s rules.

            When you use a new social media platform, have a basic understanding of the rules. Some sites will allow you to moderate and remove content from your pages, while others won’t. Some allow contests with specific rules. Some platforms will allow others to share and use your content on their platform. You don’t need to go to law school so you can get through the laborious terms of service, but knowing the basic ground rules will help you avoid both legal and PR mistakes.

4. When it’s a paid online promotion, disclose, disclose, disclose.

            The Federal Trade Commission treats online promotions differently than it does more traditional advertising. The law requires the disclosure of any “material connection” offered in exchange for an online endorsement or post. While paid tweets from celebrities to promote your products are helpful, you are supposed to make sure readers know it was paid for. There is no magic language required, but the FTC wants to make sure the average reader would know it was a paid promotion by including #paid, #sponsored, or a simple line that says, “ACME gave me this product to try out and here is what I think.”

            These disclosure rules also apply to contests. If you are doing a contest that requires posting, pinning, tweeting, or something similar, then make sure the hashtag includes something that tells the market, this is a contest or sweepstakes. It could be as simple as “#ACMEContest”.

            The bottom line is that if you are offering anyone anything of value in exchange for content, then you need to consider including a disclosure of the connection.

5. You can’t control it all; and trying to do so may be illegal

            Even if your company does not utilize social media, your employees will. And occasionally, their use of social media will impact your company or cause you to consider terminating someone for what they did on social media.

            Before firing someone for posts on their social media profiles, the National Labor Relations Board suggests you might want to pause before acting too quickly. If someone said the boss was a “NASTY M***ER F***ER don’t know how to talk to people!!!!!!” Followed by “What a LOSER!!!!” (No asterisks were used in the actual post). Firing the employee seems like a no-brainer.

            But, the post also said, “Vote YES for the UNION!!!!!!!” An administrative law judge held that the post became protected “concerted activity.” Essentially, if the rant is about working conditions, terms of employment, or discussing even the possibility of unionizing, then it can be protected speech. These rules apply to all employers regardless of whether a union is involved or not. The NLRB says online rants like this are no different than two employees getting together in the lunch room to discuss the terms of employment and possibly unionizing. It’s illegal to prohibit such talk at the water color or online.

            For the same reasons, you can’t fully restrict employees from talking about the company in a social media policy. Any restrictions that prohibit employees from talking about working conditions is a violation of the law.

6. Moderating an online discussion does not increase liability

            There is an urban legend that says you should not allow for online comments because if you moderate those comments, you expose yourself to liability. It’s a myth. The Communications Decency Act says you cannot be liable for comments posted by another on your website if the claim tries to treat you as the publisher of the comment. That’s why Facebook, YouTube, or and others cannot be sued for defamation for the content put on their site by others. This immunity from liability applies even when you moderate comments, so feel free to allow for comments and remove the crazy ones.

Obviously, you can hire highly-trained social media professionals, implement policies and training for social media use. But not everyone has access to such tools. For the rest of us, using common sense and following these six steps should allow you to feel comfortable engaging on social media for your business.

Originally published on October 26, 2022, and last edited on October 26, 2022.
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