Get Social: Using Social Media and Navigating the Legal Landscape

January 7, 2014 written by:

These days, a business interested in marketing itself is using some form of social media.  Facebook and Twitter, check.  You want to showcase your creative edge?  You may be on Tumblr, Instagram, and Pinterest.  Your marketing team is genius and has innovative approaches to engage customers and clients.  However, it is important to take into account certain potential legal issues before launching a social media campaign.  Thinking about these legal issues first may help you avoid an embarrassing public relations snafu or potential litigation later.


At the outset, companies must disclose their identity on social media. For example, if employee A for Company B has a Twitter account and is tweeting on behalf of Company B, then the Twitter profile must be clear that the tweets are on behalf of Company B.  With certain social media platforms, such as Twitter, additional rules apply for ads on Twitter.


Let’s consider trademarks first.  Do you have the right to use the trademarks? Sometimes you want to distinguish yourself from your competition by using their logo in your ad campaign or offer tickets from a third party as a prize in a contest or sweepstakes.  Again, be aware that in both instances, you want to check first if your use of their logos or brands would constitute unauthorized use.


Do you have the right to use the copyrighted work? If you upload content you created, or hired someone else to create, but you own the copyright, you are in much better shape than if the content is owned by someone else.  You saw a music video on YouTube by your favorite rockstar that you feel evokes your brand and want to share it to your Twitter followers?  Tread carefully before sharing that on your social media profile because you may be exposing your company to copyright infringement.  If that music video is central to your marketing strategy, then you should consider obtaining a license.


Can your social media engagement potentially cause defamation? The great thing about social media is that it allows a business to engage one on one with others.  Tweeting customers who love your products or services, or retweeting a positive review of your company, is great for brand building. But when you tweet, or even retweet, about someone in a negative light, it may give rise to a defamation claim.


Is any of the information you use on social media confidential? Companies can create certain rights in confidential information and the use of such information.  Often, this confidential information can be useful from a business strategy or revenue perspective.  However, once this confidential information is available on social media, a company could potentially lose legal rights in such information, and may be exposed to liability.  You may wish to ensure that information disclosed on social media platforms is not confidential to the company.


Make sure you avoid privacy or right of publicity claims.  Posting images of individuals without their permission can be damaging to the company, and can get even more complicated when these individuals are celebrities.  One step that companies can take to avoid these claims is to consider obtaining releases from the individuals to use their likenesses or names.


Social media has revolutionized how companies engage with their customers.  Understanding the legal landscape allows a company to successfully execute a marketing strategy or launch a media campaign without having to retrace its steps or, in certain instances, prematurely halt its marketing endeavors.

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