Arguably, individuals can use social media, interact with brands, celebrities and friends (or enemies) in any manner they wish, and their actions will be protected by the First Amendment. Businesses that utilize social media as part of their branding and marketing, do not have that same luxury. Because businesses are, well in the business of making money by selling, they are afforded a lower level of First Amendment protection. This means, that as a business you can’t just do and say whatever you want on social media without potential legal consequences.
A business has to prepare for potential problem posts, infringing material, damaging opinions and every company’s least favorite thing, negative consumer ratings, and reviews. To avoid these issues, it is advisable that companies take steps and educate themselves to ensure their social media use doesn’t run afoul of the law.
One of the first things you should do as a business (even if it is just you right now) is to develop social media use policies. These policies are for anyone that may have access to your business social media accounts. The should cover both internal usages, and dealing with external issues such as how to handle that negative Facebook review. The policies will need to outline what is acceptable content to post, what isn’t (we’ll go over some of that below), and they should explain to your employees why they can’t use your business social platforms for personal use.
What you CAN’T Do
When it comes to what you can’t do as a business on social platforms the list is somewhat extensive. But let’s look at the top three things to avoid.
1. Don’t create a false association between your company and a celebrity, or influencer. Celebrities particularly are very protective of their right to publicity, i.e their right to profit off of their name/image. If you interact with celebrities or post about them in such a way that leads consumers to believe that the celebrity endorses your product or service, you could be in for some trouble. Even if the celebrity is currently big news and your business posts something about them without their consent, they are well within their rights to assert a claim against you. They might show (and prove) that you were only posting about the celebrity to bring attention to your company. So, take care when posting about celebrities or influencers without their consent. If you can avoid doing it, that will always be the safest course of action.
2. If you’re working with influencers through brand deals, make sure they are following the FTC guidelines on sponsored content. I have discussed this at length because it is a hot issue right now. Influencer marketing is lucrative, and not going anywhere. I certainly think it is a smart way for a business to market their product. However, there are rules. Make sure you know them and make sure your influencers know and follow them. If not, the FTC will find you, and fine you.
3. Pay attention to the intellectual property rights of others. You cannot, under any circumstance use someone else’s posts, videos, music, article, in some circumstances hashtags etc. without their consent. DO NOT use other people’s work on your social media pages. This is true for individuals, but it is especially true for business social media pages. If you would like to use some type of content that your business did not create, ask for permission or pay for the license to do so. This way, you don’t get sued for IP infringement.
Things You Should Do
Businesses must comply with the Digital Millennium Copyright Act (DMCA) and the Communications Decency Act. These are safe harbors that allow companies to address issues such as IP infringement, and defamation without getting in legal trouble first.
Plan for the future. Have a social media resolution plan in place before an issue arises. You want to decide how, and what problematic posts you as a business are willing to spend time and resources responding to and dealing with. Sit down, decide in advance the best way to handle the issues and stick to that plan whenever a problematic post appears. And remember, not every problematic post or offensive comment needs to be addressed. Sometimes it is best to leave things alone.
Remember that traditional media rules and law apply here. If a rule applies to traditional media outlets, it is going to apply to your business’s social media platforms as well. Keep up to date on all advertising rules and you will be much better off!
As I almost always say, that isn’t all. But that is all for now. Be mindful of your social media use if you’re doing so as a business. The internet is not a free for all, and your business page must be handled appropriately or you will be facing some big-time trouble! If you have questions, comments, concerns, or you’re interested in working with me shoot me an email to firstname.lastname@example.org.