Spokane Journal of Business

Clear social media policies are a must

Proactive steps can help deter lawsuits, other issues

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As more and more people get their media online and on their mobile devices, the need for businesses to communicate with and market to key audiences on social media channels also is increasing. 

However, overlapping state and federal laws, along with tort and intellectual property laws, can make navigating the legalities of social media difficult for even the most seasoned business professional. 

Not surprisingly, the need to share information on social media often can be met with resistance from an organization’s legal department, which is looking to protect the organization from any potential lawsuits, liabilities, and fines.

This is particularly true in highly regulated industries, such as financial services and health care. Regardless of industry, however, there are four steps your company can take to help ensure you’re protected—from both legal and reputational perspectives:


Step 1: Implement a social media policy from the beginning and hold employees accountable. 

Establishing a social media policy governing what can and can’t be shared with external audiences and the general public on your company’s social channels will give you and your legal team peace of mind. While it’s not feasible for senior management or a lawyer to review every piece of content, a policy should set general parameters. The policy can help the social media team screen topics that may need a closer review by legal as well provide an approval process. 

The policy should also include guidelines on how to avoid defamation, discrimination, intellectual property violations, Federal Trade Commission violations, and protection against revealing trade secrets. Providing training during new hire orientation and throughout the year can help employees feel more confident in their ability to make smart choices about content. Additionally, companies should keep in mind the world of that social media is constantly evolving, and to regularly evaluate and update their plan accordingly. 


Step 2: Make sure you own and control your social media channels.

Just as you would never give the master keys to your office or store to all of your team members, neither should you relinquish control of your social media channels. In other words, don’t permit employees to set up their own Facebook, Twitter, or Instagram social media accounts to use in furtherance of your business or on behalf of the company. Additionally, maintaining control of the login credentials to your official social channels, as well as who has access to the accounts, from the outset can prevent future posts from occurring should an employee leave the company or even go rogue. 


Step 3: Verify who owns the content you are using. 

“Copy,” “paste,” and “save as,” three of the most commonly used functions on computers, can lead your company into legal hot water. Finding great images and videos online is so easy, but businesses or employees sometimes make the mistake of believing that content, videos, or images found online are part of the public domain.

That’s simply not true.

Those belong to the people or entity that created them, and you must obtain written permission from the owner before using them. Risking it is a great way to open your company up to litigation. 

For example, Getty Images was sued for copying and selling a photo posted on Twitter that was taken by a photojournalist of the 2010 earthquake in Haiti. 

The photojournalist, Daniel Morel, was awarded $1.2 million in damages. Just because something is posted on social media, or online in general, doesn’t mean that copyright ownership has been abandoned. Always obtain written approval by the owner of the photograph before using it.

Alternatively, use your own photos or those specified as being in the public domain.   


Step 4: Understand and follow FTC guidelines.

Although FTC guidelines have been around since 2009—most recently updated in 2013—many businesses still don’t follow them. 

For example, many companies don’t know that even a 140-character tweet can be considered an advertisement or that public disclosure is required when a person posting on social media has a relationship with the company that the post is about. 

That means that social posts must comply with advertising laws to the same extent as traditional ad campaigns.

Basically, don’t make claims about your own products that can’t be substantiated, and avoid commenting on your competitors’ products at all.

In addition, the FTC guidelines, which were created in response to third parties’ ability to post on behalf of companies, require that the relationship between the company and the third party be disclosed. 

In other words, if you pay fashionistas or outdoor bloggers to post photos of themselves wearing your products, that affiliation must be disclosed to consumers.

While those steps won’t prevent every mistake, they can help set up your company with a solid baseline of protection against some of the legal implications of a social media misstep. 

Overall, the best thing you can do is simply be aware of what your employees are up to with respect to social media, craft a strong social media policy on behalf of your business, and ensure all of your content and sponsored posts follow FTC guidelines. 

Given the ever-changing nature of social and digital media, and the laws that regulate them, it may also be wise to consult an outside adviser on best practices. 

Kimberly A. Houser is an assistant clinical professor of business law at
Washington State University’s Carson College of Business.

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