Not all speech is equally free. And on social media, some of it can get you in trouble—especially if you’re a brand.
“Just because you’re in social media doesn’t mean you’re not under the purview of general advertising, intellectual property and privacy laws,” said Rosa Walker, senior corporate counsel at beauty company Coty, Inc., during a recent Social Media Week panel in New York.
Understanding how to jump through these legal hoops is fundamental to a successful content operation, so we’ve rounded up the best ways to help avoid lawsuits, government sanction, and general hassle.
1. Call it commercial speech
Content produced for the ultimate purpose of selling a product or service is considered commercial speech, which faces special strictures. For example, brands:
- may not be free to simply repost praise of their products the same way individuals can.
- don’t have the same First Amendment protection as news organizations.
- need to identify who’s paid to contribute.
We’ll get more into what these mean below.
2. Train and track
Some companies let the people versed in social media run their content operations, but oftentimes those people need guidance on how to post on behalf of a business.
Some businesses, including Coty, require a certification the company provides. They also make sure their social media management tools track who’s posting what, when, and where.
3. Have a code of conduct
Rules not only make it easier to say what is and isn’t kosher, but also—should you run into trouble—say that there were clear lines of conduct and authority.
The code of conduct should permeate the organization, from the junior community manager up to the C-suite. “It doesn’t look good for your interns or employees if you allow the CEO or CFO to do whatever they want,” Walker said.
Due to labor laws, a company often can’t restrict what an employee says in a personal feed. But the company does have absolute responsibility and control on its own outlets.
4. Know the platform’s rules
Someone on your team needs to read and understand those terms of service that everyone ignores, and know how they differ on different platforms.
Violating them, even inadvertently, can get you banned or blocked, and you may have no legal recourse. Facebook, for example, bans the practice of requiring a like to access content.
It also pays to know the legal ins and outs of the technology that piggybacks on major social platforms. Regram is a popular app used to share from Instagram. Those who use it are, technically, copying that material and reposting it, and so may be improperly sharing without permission.
5. It’s probably on you (and not the platform)
Generally, platforms write their rules to protect themselves. If someone violates them, you may be liable, even if the platform is not.
Likewise, if someone says something in a stream you control that’s libelous or inflammatory, you may be responsible, even if you did not encourage or sanction it.
6. #*Disclose paid speech
Regulators dislike it when messaging that’s paid for isn’t identified as such. And their definition of “paid” can be rather strict. The FTC investigated Ann Taylor and warned Nordstrom for offering gift cards to bloggers and Tweeters who attended events.
Brands can also face warnings or fines if they pay celebrities to put a product or service in their stream but don’t say so, as was supposedly done when Kim Kardashian touted lip balm EOS as a solution to her pregnancy lips problem.
https://twitter.com/kimkardashian/status/339188796191027200
To disclose, some brands use hashtags, such as #ad or #sponsored. Others say things like “thrilled to be partnering with [brand X].” The law on this is evolving, but you should always demonstrate a reasonable attempt at identifying.
7. Realize other people’s property is, well, theirs
When someone heralds your product in their social stream, are you allowed to repost it? If you get their explicit OK, then yes. Otherwise, probably not. Various U.S. states have “rights of publicity” laws that protect people from having their likeness, voice, or any of their “indicia” used for commercial speech without their permission.
And if their post has, say, friends or relatives in a picture, you may have to get everyone’s permission.
8. Especially celebrities’
If you have to get permission of regular folks, that holds triple for the famous, who, as noted above, can get big checks for brand mentions.
Katherine Heigl brought a $6 million lawsuit against Duane Reade when the drugstore posted a photo of her carrying one of their shopping bags. The chain had obtained permission from the news organization that owned and originally ran the image, but not from the actress. Duane Reade agreed to donate to a foundation Heigl named.
9. Know it’s the post that matters, not the author
When is a person a brand? Let’s say, for example, that someone clearly recognized as a journalist also encourages people on Pinterest to buy their book. That “buy” post may be considered commercial speech, even if the rest of the feed is not. “The concentration is on what the content is, not who the speaker is,” said Hannah E. Taylor, a lawyer at Frankfurt Kurnit Kein & Selz.
10. Know your risk tolerance—and be smart
If at this point your head is spinning a little and you think things are in flux, join the club. A smart attorney will tell you when the law isn’t definitive.
For example, if you’re running a sweepstakes, you might not be covered by simply linking to the rules from your social feed. “There’s no such thing as the ‘one click away’ rule,” Walker said. But do you want to run the contest, regardless?
It pays to at least consider asking the question, and knowing which specific questions to ask.
A lot of legal hassles, as well as embarrassment and unwanted attention, can be avoided if trained employees and contractors consider the legal implications before hitting “Post,” “Pin,” or “Tweet.”
Note: This information in this article is not intended to constitute legal advice and should not be relied upon in lieu of consultation with appropriate legal advisors.
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Africa Studio
