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Don't Let Legal Keep You Out of Social

By Glen Gilmore
Adjunct Professor at Rutgers University

The easiest thing for a lawyer to do is to tell you why you should not do something. We are pretty good at conjuring up a "parade of horribles," sharing with you every possible thing that could go wrong. Lawyers, by schooling, are risk averse. As a consequence, the specter of costly litigation and sanctions from a single "mistweet" has been enough to keep many businesses from joining the social media conversation. This is unfortunate, as the specter of litigation from social media participation is a bugaboo. It's time to tell your lawyers to brush up on social media law and figure out how to get you to safely join the social media conversation.

Make no mistake, there have been some high-profile legal actions related to social media participation. These instances, however, have largely been related to cases of egregious misconduct.

The $430,000 Twitter Defamation Lawsuit

One of the first high-profile instances of social media litigation to catch the public imagination involved the not-so-discreet American musician Courtney Love (best known as the widow of grunge icon Kurt Cobain) and her "$430,000 Twitter defamation lawsuit." Is it true that Ms. Love was forced to settle a lawsuit for nearly half a million dollars for a single mistweet? No. She chose, on the advice of her attorneys, to settle a lawsuit that involved a series of defamatory messages from her Twitter and MySpace accounts. Ms. Love's postings were a colorful rant against a clothing designer with whom she had a fee dispute. According to the designer, Ms. Love's social network rants accused her of being a thief, a prostitute, a drug addict, a drug dealer, a liar, a racist—oh, and not a very good designer. Exhibit A: not the sort of conduct one would expect from your average social media community manager.

Legacy Learning Systems, Inc.'s $250,000 Settlement with the FTC

In 2009, the Federal Trade Commission (FTC) announced social media marketing guidelines. Very simply, these guidelines impose a requirement that where a "material connection" exists between a blogger and a product or service that the blogger is blogging about, the blogger must disclose the connection in a "clear and conspicuous" manner (no, a static profile disclaimer or disclosure link, button, or tab is not enough; the disclosure should appear within the social media conversation). Those "sponsoring" bloggers (i.e., giving them free samples or other perks) have an obligation to inform their beneficiary bloggers of their duty to disclose that a connection exists when they are tweeting or blogging about the sponsor's goods or services. They must also monitor their "sponsored bloggers" for compliance.

In the case of Legacy Learning Systems, Inc., a company selling guitar-lesson DVDs, the FTC charged that it "deceptively advertised its products through online affiliate marketers who falsely posed as ordinary consumers or independent reviewers." The company agreed to settle the complaint for $250,000. The company also agreed to "monitor and submit monthly reports about its top 50 revenue-generating affiliate marketers, and make sure that they are disclosing that they earn commissions for sales and are not misrepresenting themselves as independent users or ordinary consumers."

In announcing the settlement, the FTC declared the case was an example of its "efforts to make sure that advertising to American consumers is truthful and not deceptive, whether the advertisements appear in traditional or newer forms of media." Ignorance of FTC's guidelines is no excuse for violating them. Social media marketing requires being attentive to applicable guidelines.

"Facebook Firings" and NLRB Complaints

The National Labor Relations Board (NLRB) has made much press by bringing more than a hundred complaints against employers. Many of those complaints arose because of overly broad social media policies that were deemed to have a "chilling effect" on the rights of employees to take "concerted actions" and discuss their working conditions. If your company is one of the companies that rushed to adopt a social media policy that bans any social media comments by employees that are "disparaging" to the company, it's time to take a look at what the NLRB has said and rewrite your policies. Social media compliance requires staying attuned to developments in the field.

Mistweets will happen. Only one of three instances mentioned, Chrysler's, involved a threat of litigation (against the platform alleged to have been responsible for sending the mistweet). Crisis planning comes with marketing.

Understanding the Risks Associated with Social Media Marketing

Social media marketing, like traditional marketing, comes with rules and regulations. And social media law, like social media itself, is evolving. Many regulatory agencies are still trying to figure out how best to apply traditional rules to new media. Know that everything you blog, tweet, Google+, and "like" becomes a permanent record and is subject to e-discovery. Know as well that digital marketing is always global, and international laws may impact your responsibilities and liabilities. This is so whether you have a simple website or social media presence.

A Plan to Minimize Social Media Marketing Risks

  • Invest in understanding social media regulatory guidelines
  • Establish a social media team (TEAM, not silos)
  • Set your social media strategy
  • Create and share a clear social media policy
  • Invest in social media training
  • Regularly audit and update all of the above

The best social media marketing best practice when it comes to complying with the law and regulatory agencies? Be transparent and truthful.

Real-time "conversation" in a world-wide digital forum requires streamlined access to legal counsel and a decision tree to help govern most online conduct. Common sense also goes a long way.

What about highly regulated industries? The answer is in the question. If you are in a highly regulated industry, you have additional obligations when using new media, just as you do with traditional media. Look to your regulatory agency for guidance, or use traditional guidelines where new media guidelines do not exist. And give the boundaries a wide berth.

DISCLAIMER: Although the author of this article is an attorney and teaches social media law at Rutgers University, this discussion of social media law is for informational purposes only and should not be considered legal advice. For legal questions, please consult with an attorney from your jurisdiction.

Glen Gilmore

As an Adjunct Professor at Rutgers University, Glen Gilmore teaches digital marketing and social media law. When he's not in the classroom, Glen serves as Principal of Gilmore Business Network, a New Jersey-based social media marketing consulting firm. He is also a practicing attorney. The Huffington Post dubbed Glen a "Twitter Powerhouse," The Memphis Daily has written that "Gilmore is well-versed in all things Web-related," and Time magazine called him "a man of action." Glen is one of the most popular marketing professors on Twitter, with more than 100,000 followers.