Time in the social media world moves at an extremely rapid pace. News is delivered immediately, original content is created to keep up with the day’s news, and non-original content can be shared at the click of a button. Companies continue to rely on social media to spread their message and promote their brand to mass audiences. However, the ways in which a company uses social media for growth and recognition can have many legal implications. W hile deemed “commercial” activity as they are designed to interact with potential customers, having proper policies and procedures in place for various certain media platforms including, but not limited to, the company’s website, any company-controlled website forum, Facebook, Instagram, Twitter, Snapchat, or other similar program (“Platforms”) must be implemented. This article discusses common areas companies are to be aware of when posting and the ways that proper policies and procedures can mitigate liability or prevent issues from arising when posting on Platforms.
BE AWARE OF VARIOUS POTENTIAL LIABILITIES
Below are the most common areas that companies violate when using Platforms:
Intellectual Property Infringement
Trademark
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of a party’s goods from those of others. A “service mark ” includes marks that distinguish the source of services as opposed to goods. A trademark identifies the source of the goods or services. Concerns arise when there is confusion as to the source of those goods or services.
In a social media post, using a word, phrase or symbol to promote a similar or related product that is so similar to another company’s trademark can create confusion. This “likelihood of confusion” allows the trademark owner to object to such use of the specific word or phrase that is trademarked. Conducting a trademark search in the Trademark Electronic Search System (“TESS”) on the United States Patent and Trademark Office (USPTO) provides information on current trademarks registered that should avoid being used.
For example, Fantastic Floorwax Company posts a tweet that says “Be sure to come in and buy some products during our 3-day sale! #bigsale #allwedoiswax”. If desirable, UK W Holding Company, a Florida corporation and owner of the trademark “A ll We Do is Wax” could object, and require Fantastic Floorwax Company to remove its hashtag from its tweet.
Copyright
Copyright protection is available for “original works of authorship” that are in tangible form; whether the work is published or unpublished is irrelevant. Unlike a trademark, which requires registration or actual use of the word or phrase, the creator of the original work automatically receives copyright protection in that original work. The most common examples of works protected by copyright law include literary works, works of art, photographs, and software.
When applied to social media, using content you did not create likely means you are violating copyright law without receiving the owner’s consent. Frequently, issues concerning copyright law revolve around the use of pictures on Platforms. The important question to ask is “W ho took the picture?” Under copyright law, the person who presses the button on the camera – not the person who owns the camera nor the person(s) in the picture – is the copyright holder of the picture.
For example, on its Instagram account, Fantastic Floorwax Company posts an on-court picture of the Chicago Bulls basketball court with a heart emoji and the hashtag “#somuchwax”. In order to assure proper use of the photo, Fantastic Floorwax Company should determine who took the picture, receive consent from the Chicago Bulls or the owner of the picture or, if consent is not able to be received, agree to license the photo from the copyright owner for use in the Instagram post.
Defamation
A defamation claim involves a false statement presented as a fact about a certain individual that results in harm to reputation or loss of business due to the false statement being “published” to a third party. The resulting harm in reputation comes in many forms including loss of business revenue, accusation of committing a crime, or incompetence in a profession. Standards of proof required vary based on the applicable harm in reputation. In the social media world, defamation may come in the form of original statements or the re-posting of material from another source.
Privacy
Regardless of views or interactions, social media posts have a very large public reach. Once a message is sent, it is part of a worldwide network. Courts have previously concluded that once a message is posted and viewable by another on a Platform, the message originator has forfeited any privacy interest in the message. A company’s right to privacy depends on whether the company has a “reasonable expectation of privacy.” This is determined by the facts and circumstance of the relevant situation. A reasonable expectation of privacy is waived if an individual voluntarily posts personal information through its social media platforms. However, if information is posted about another improperly and without permission, privacy rights may be violated. For example, on its Facebook page, Fantastic Floorwax Company plans a post as a thank you to its new employees including a picture of the employees together at orientation. In the background of the picture, each employee’s cell phone number is listed on a whiteboard. Exposing this private information to the public may violate privacy law.
WHAT PROTECTIONS SHOULD YOU HAVE IN PLACE?
The User Agreement and the Social Media Policy documents will spell out the protections afforded to the company and the terms and conditions employees and other parties agree to pursuant to use and engagement with the Platforms. Be sure that such policies do not violate any rights of employees. Regarding social media policies, federal law and the National Labor Relations Board protects employees’ rights to discuss “protected concerted” activity and protects an employee to discuss pay, benefits, and working conditions on the Platforms.
User Agreement (“Agreement”)
User Agreements can govern all Platforms. Regarding specific content, be sure the Agreement states that communications posted are the opinion solely of the individual and do not represent the views or opinions of the company. The Agreement should not allow an individual to post content of the company without the company’s prior written consent.
A disclaimer will protect the company against any types of damages – such as direct, special, incidental, or consequential damages – that occur due to or in connection with any content posted on the company’s Platforms. Finally, an indemnification provision will shift the risk from the company to the individual and require the individual to cover the cost for any claims, liabilities, judgments, or damages incurred by the company due to the posting of content by the individual on the company’s social media platforms.
Social Media Policy (“Policy”)
A company’s Policy for its employees should provide guidelines on the following areas
Strategize best way to effectively use each platform
Confidential or proprietary information about the company should never be posted on social media accounts. While a “ behind the scenes” look into the company is a great marketing tool, be sure that any video or photo does not compromise trade secrets or other confidential information of the company. Details regarding purpose and frequency of each social media platform is important as well. Consistent sentence structure and language will allow multiple employees to utilize a company’s Platforms while keeping the “voice” of the company consistent.
Be clear about account ownership
Employees must understand that the use of the company’s Platforms are solely for business purposes and the use of the Platforms for any personal reason is strictly prohibited. The extent of reprimand may include termination depending on the severity of the content posted; other disciplinary action should be outlined in the event an employee uses these platforms with an improper purpose. Include language that transfers any ownership rights an employee may have in content to the company. Provide clarity of each social media account’s username and password and critically think about which employees truly need access to each account. Be sure proper security measures are in place. Draft and approve a crisis management plan to effectively communicate during emergency situations. Platforms can be extremely valuable forms of communicating during times of crisis.
Separate and provide parameters for employees’ personal accounts
Employees should disclose that views expressed on their personal social media accounts are their personal opinion and do not reflect the opinions of the company. While this disclaimer can mitigate any potential liability of the company, employees acting improperly on Platforms can be a public relations nightmare. Having an action plan in place to distance the employee’s comments from the company’s beliefs is imperative.
For example, Fantastic Floorwax Company may allow employees or customers to use their personal devices to take pictures and post content on the company’s social media platforms. The company’s social media policy should include language that the employee agrees to transfer all ownership, title right, and interest in the picture to the company. Additionally, the employee agrees to not use the picture for any purpose other than business purposes of the company. Further, the policy must require the employee to return or destroy all pictures taken while acting in his or her capacity as an employee of the company or transfer at the company’s request.
It is imperative that companies be aware of the implications and impact social media posts can have. Each social media policy may be different depending on the size of the company or the purposes the company uses the Platforms to further its mission.
Before clicking the “send” button, be sure to have the proper procedures in place and stop and think about whether your actions comply with the company’s policies in place.
Matthew E. Misichko is an Associate with the Associations and Foundations Practice Group at Barnes & Thornburg. Matthew can be reached at 312.214.4827 or matt.misichko@btlaw.com.