Social Media and the Law: What You Need to Know

The Supreme Court has said: “social media is the most powerful mechanism available to a private citizen to be heard.”

As with anything that is powerful, care must be taken to ensure safety and compliance. At our 2018 seminar on Social Media and the Law, Butzel Long attorneys Robin Luce-Herrmann and Jennifer Dukarski emphasized two watchwords that can help you stay on the right side of the law: Transparency and Consent.

Transparency includes following these tips:
● Use disclaimers liberally.
● Make sure sponsored content is clearly defined, disclosed and easily recognizable (not just barely readable in the “fine print”).
● If you use links, verify their accuracy and understand the source.
● Influencers: if you pay them or provide them with product, this MUST be disclosed by you and them.

Take care in these situations:
● Asking your employees to do social-media posts off-hours.
● “Thumbs up” and even favorable comments could be used “down the line” in a lawsuit as an implied endorsement, especially if it can be tied to a loss of business. Case in point: Quiznos/Subway. Quiznos asked people to submit video for a contest telling why Q is better. The issue was that the sample video bashed Subway.
● Retweeting can be dangerous. Joy Reid, of MSNBC Weekends, is being sued for re-tweeting a post attacking a woman for wearing a MAGA hat.
● Retweeting without a comment can be seen as an endorsement. Understand the source! (reference the Tom Brady/Breitbart case)

Consent is more important than ever, given the recent GDPR ruling in Europe. Default is now that consent is withheld, instead of granted. So, asking permission gets you off the legal hook.

● Data collection: consent is everything.
● “Fair use” applies if it’s for educational purposes, with no exchange of money. It should include attribution or a link to the original site, rather than being embedded.

To protect your company, its management and employees, it is best to:

● Have a social media brand-manager policy.
● Be sure to read Facebook’s Terms & Conditions.
● Consult the FTC Endorsement Guide, which includes guidance regarding hashtags.

Our presenters suggested the following links for valuable additional online information:

Platform Terms of Use / Terms of Service:
· https://www.facebook.com/terms.php
· https://help.instagram.com/581066165581870
· https://www.linkedin.com/legal/user-agreement
· https://policy.pinterest.com/en/terms-of-service
· https://www.youtube.com/static?template=terms
· https://www.whatsapp.com/legal/
· https://twitter.com/en/tos

Endorsement, Sponsored Content and Native Advertising Guidance
· https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking
 https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf
· https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses

Online Marketing Guidance
· https://www.ftc.gov/tips-advice/business-center/guidance/advertising-marketing-internet-rules-road

Security and Privacy Guidance
· https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business
· https://www.ftc.gov/news-events/blogs/business-blog/2018/11/cybersecurity-small-business-ransomware
· https://www.ftc.gov/tips-advice/business-center/guidance/stick-security-business-blog-series
· https://www.ftc.gov/tips-advice/business-center/guidance/small-business-computer-security-basics

Robin Luce-Herrmann is head of Butzel Long’s Media Group. Representing a broad array of clients, she concentrates her practice in the areas of media law, particularly defamation, privacy and access issues. Jennifer Dukarski focuses her practice at the intersection of technology and communications with an emphasis on the legal issues arising from emerging and disruptive innovation including vehicle safety, connected and autonomous cars, data privacy and security, and mobile applications.

 

2019-02-01T20:55:03+00:00December 7, 2018|

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