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Social Media And The Law: A Checklist

Chances are you or your company has already jumped on the social media bandwagon. Brands have seen an opportunity to directly engage with their target customers and have grasped it with much success. Promotions abound on Twitter an Facebook, as does constant dialogue with consumers and brand reps. The ease and immediacy of interaction and access have made social media platforms the next frontier for brands to use, not just for marketing strategies, but for real-time customer service.

The following is a social media checklist for companies. When devising your social media strategy, we recommend you talk with attorneys experienced in this area.

  •   Stake your claim: Claim your brand/business name on the relevant sites. Even if you don’t plan on using them immediately, it will prevent others from tying them up and potentially using them for anti-competitive means.
  • Ask first: Be careful about misusing other’s trademarks in your social media content. Be sure whatever agreement you have with a promotional partner applies to the virtual world as well as the brick-and-mortar world.
  • Changing terms: Familiarize yourself with the terms and conditions of each platform. The terms and conditions are usually prominently posted on the homepage and tend to change. Nobody wants to get banned from Facebook.
  • Interacting Fans: For brands who invite customer interaction, we advise compliance with the Digital Millennium Copyright Act (DMCA). If you meet these requirements, you can be immune from liability for infringing content posted by others on your sites (i.e. a video posted by a fan that is owned by someone else). Compliance is pretty simple and well worth it as it protects you from potentially hefty damages (especially in that litigious scenario).
  • Contest Rules: Make sure all promos, sweepstakes and contests comply with the relevant federal and state laws. Linking to a static page with the contest rules is a productive way to comply.
  • Earn the rights: Be aware of ownership issues when posting content. Yes, your YouTube video may capture more viewers if you sync it with the latest Black Lips hit, but you are essentially using the video for commercial purposes and thus must obtain the rights to use them.
  • Protect and enforce: Monitor social media networks for offensive or infringing content and enforce your rights. If someone sets up an unauthorized Twitter account report it to Twitter and send a cease-and-desist letter. If your trademark is misused, make sure it’s corrected or removed. Proactive action can lessen the likelihood of infringement. But choose your battles wisely. You may walk into a public relations nightmare if you decide to make strong legal threats against an innocent fan who was unaware of any legal ramifications.
  • Employee power: Set parameters. Companies can embrace the marketing power of their employees by encouraging them to Tweet something positive about the brand. As long as you’re actively monitoring the content generated, it could be a winning strategy. Be sure to address protection of your company’s confidential information in your employee social media guidelines.
  • Communicate: Involve multiple business teams in your social media strategy. It not only helps with consistency in messaging, it also prevents a potential PR nightmare that could occur when marketing and legal don’t talk.
  • Legal: This wouldn’t be a true article prepared by lawyers if we didn’t advise you to seek competent legal counsel to discuss these issues further.
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