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Spotting Legal Land Mines in Your Social Media Campaign

Originally published: 05.01.13 by Mike Coyne

As with any new business endeavor, social media campaigns come with some legal risks that are not always immediately apparent. There are two characteristics of social media that could create some special risks.

First, social media is, by its nature, interactive. In all likelihood your customers and friends will produce part of the content of your social media campaign. It might be in the form of testimonials, recommendations, or other comments on your social media site. While you can’t control what third parties write, you might have some potential liability for what they write.

Additionally, like all things on the Internet, social media campaigns might move at an extraordinarily rapid pace, making it difficult to do damage control. Consequently, a social media campaign requires much more attention than simply placing an advertisement in a newspaper or magazine.
If you have not conducted a social media campaign before, it’s a good idea to visit Facebook and see what other companies in service industries are doing with social media. (We found several HVACR companies with a presence on Facebook.) Familiarity with the structure of a social media site will make it much easier to understand the risks.

/>False and Misleading Advertising
While it is terrific to receive recommendations and testimonials from customers, if those “customers” are members of your family or are your employees, your failure to disclose that material connection might be a violation of federal or state laws against unfair or deceptive advertising. In the past couple of years, the Federal Trade Commission has levied significant fines against companies that have used fake reviews to promote their products or services.

Copyright and Trademark Infringement
The key to a successful social media campaign is “content.” New material must be published on your social media site on a regular and very frequent basis in order to attract customers. It might be tempting to copy material from other websites to satisfy the demand for new material. Most social media sites have policies against unauthorized use of copyrighted material, and violation of the rule can shut down your site. Of course, the owner of the copyrighted or trademarked material can also have claims against you.

Libel and Slander
Smart business people know that they must be careful in what they say about competitors. A false statement could lead to an embarrassing lawsuit. As mentioned earlier, in a social media campaign, content on your social media site could be generated by customers or other third parties. While you might not have direct liability for what is written by a third party, your failure to disclaim slanderous comments or to remove them from your website could lead to indirect liability. Additionally, your failure might violate the terms of your agreement with the social media site.

Violations of Privacy
We found a number of social media websites of service businesses with pictures of product installations to illustrate the quality of the business’ work. There’s nothing inherently wrong with publication of such pictures. However, you must take care to preserve the privacy of your customers. Unless a customer consents to the use of material that identifies his home or its location, that material should not be used.

For many of us who are older, there is a temptation to ignore social media. Don’t do that without first talking to someone in their 20s. A social media campaign is an extraordinarily cost-effective and efficient way of marketing your services. Potential legal problems can be minimized with common sense and diligent monitoring.  

Michael P. Coyne is a founding partner of the law firm, Waldheger Coyne, located in Cleveland, Ohio. For more information on the firm, visit: www.healthlaw.com  or call 440-835-0600.

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