Kimberly A. Houser
BridgeTower Media Newswires
Social media has become an essential tool for companies to promote their business as well as communicate and engage with their target audiences. However, the social media landscape is constantly developing and along with it, so are laws and regulations.
Businesses must navigate tort and intellectual property laws as well as federal and state regulations, but the lack of clarity surrounding these rules can make it tricky to ensure compliance—from hiring practices to employee usage and consumer engagement. Fortunately, there are steps you can take to minimize risk and avoid mistakes that could potentially lead to legal or reputational damage.
Develop a social media policy for employees to follow and hold them accountable
While it may not be realistic to have a lawyer or senior management review all social media posts, you can create policies that set general parameters for employees to follow. Policies should align with Federal Trade Commission regulations and provide guidelines for how to avoid defamation, discrimination and intellectual property violations. Additionally, companies should regularly evaluate and update their social media plans to keep up with changing times.
Providing additional training for employees who actively post on behalf of the company can help minimize the risk of legal or reputational damage while empowering staff to know what can and cannot be shared with the public. A 2014 case in Idaho, Talbot v. Desert View Care Ctr., upheld the denial of unemployment benefits by the Idaho Industrial Commission because an employee was rightfully dismissed for violating a social media policy at work.
Businesses should, however, be aware that not all activity on social media can be prohibited. The National Labor Relations Act gives both union and non-union employees the right to engage in “concerted activities,” which means employees generally have the right to discuss employment conditions with one another, even if that takes place online.
Verify content ownership
Since finding great images online has become so easy, one might quickly make the mistake of thinking they are part of the public domain. This is simply not the case. Images and other forms of media are owned by the person or entity that created them and cannot be used without permission from the owner—regardless of copyright notice.
A recent example of this made headlines when major publications including Breitbart, Yahoo and Heavy.com were sued for issuing news stories that had embedded tweets containing a photo posted on the photographer Justin Goldman’s snapchat story. Although the court sided with Goldman in this case, it may be appealed. The threat of legal prosecution for even simple instances of copyright infringement is not worth the risk for any company.
To avoid leaving your company open to litigation, ensure written permission is granted by the creator of the content. Other options include licensing work that is available in the public domain through recognized licensors or creating owned content either in-house or through a contractor.
Follow FTC guidelines carefully
The FTC guidelines were created in 2009 and updated in 2013 in response to third parties posting on behalf of companies. The guidelines require the relationship between the company and third party to be disclosed. In other words, if you pay lifestyle bloggers to post photos of themselves wearing or using your product, this affiliation must be disclosed to consumers. As a result, social posts must now comply with advertising laws to the same extent as traditional ad campaigns. Even a 140-character tweet can be considered an advertisement today. The basic rule of thumb is to only make claims about your own products that can be substantiated and to refrain from commenting on competitors’ products at all.
Maintain control of your social media channels
Managing and monitoring all social media accounts that represent your company is important. Do not permit employees to set up their own Facebook, Twitter or Instagram accounts to promote your business. From the outset, maintaining control of the login credentials to your official social channels, as well as who has access to the accounts, can help prevent negative incidents from occurring should an employee leave the company or go rogue.
Following these steps won’t eliminate all risks, but will serve as a solid starting point to protect your brand online and equip employees with the proper tools to do so on behalf of the business. But beware, just as the social media landscape continues to evolve, so will laws that apply to it. For this reason, Idaho businesses should make it a priority to keep company policies updated and enforced, and when possible, consult legal counsel on best practices.
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Kimberly A. Houser, Ph.D., is an assistant clinical professor of business law at Washington State University’s Carson College of Business. She teaches courses in the Legal and Ethical Environment of Business, Business Law for Masters of Accounting and Social Media Law.
