Tweet This
Kyle-Beth Hilfer, Esq.

Kyle-Beth Hilfer, Esq. of Hilfer Law

Evaluating and reducing legal risk is an important step when setting up corporate social media programs. However, according to Kyle-Beth Hilfer, Esq. of Hilfer Law, a NY based attorney focused entirely on advertising, marketing, promotions, intellectual property, and new media law, some firms don’t take proper precautions.

Joanna Belbey: Why don’t firms consider the legal ramifications before they start using social media?

Kyle-Beth Hilfer, Esq.: Businesses neglect legal due diligence in social media for one of three reasons. First, many brand managers or even general counsels are unaware of the complexities of advertising and marketing law. Second, businesses assume that if their competitor is doing it, it must be okay. Third, brands have not allocated budget or time for a legal check-up. Regardless of the reason, however, it’s never too late to mitigate risks with proper planning.

Belbey: What are some best practices of protecting your brand and avoiding legal issues when rolling out social media at a firm?

Hilfer: There are many steps that firms can take to mitigate risks. Here are 5 top-line suggestions .

  1. Think critically about whether your brand should be on every popular social media platform. Familiarize yourself with each social media platforms’ rules and guidelines. Determine how the platforms’ rules align with your own brand’s legal policies, and consult with knowledgeable legal counsel about the risks each platform creates for your brand.
  2. Create policies that protect your brand. Your social media policy team should consist of legal, HR, and marketing personnel so all stakeholders have a say. There is no one size fits all social media policy. Each company should draft its policies to align with preexisting guidelines for social interaction, email, confidential information, and intellectual property protection. Once you have policies in place, it is crucial to monitor your employees’ actions and the third parties with whom you interact. Enforcement of well-crafted policies often saves companies from legal liability.
  3. Bring legal counsel into the discussion early as you plan strategy and your marketing approach. Review the legal paradigms that apply to your marketing efforts. Your legal counsel should support your business goals and help you create meaningful programs with minimal legal risk. If you have the right legal relationship in place, you will find legal counsel to be a benefit and not a hindrance.
  4. Make sure any contracts with outside agencies protect you adequately. Did you provide for copyright transfer on content? Do you have access to the content (meaning being fully informed of social media handles, log in information, and passwords) so you can take control of accounts quickly if necessary? Do you know what your agencies are doing with the data they collect? Are they protecting that data in alignment with your brands’ privacy policies? And crucially, take a look at the warranties and indemnities to determine ultimate legal and financial responsibility.
  5. Focus on intellectual property rather than ROI. Metrics may be hard to pin down with social media, but the long-term benefits of brand recognition are priceless. The goal is to interact with customers in a meaningful way via social media that builds loyalty and secondary meaning in the marketplace. If done lawfully, social media campaigns can augment the value of a brand’s trademarks (indeed, trademarks are company assets and can be valued if a company is sold) as well as the bottom line. If done without consideration for legal issues, the public relations and legal fallout can damage a company’s intellectual property and leave it vulnerable to legal challenge. At least once a quarter, check in with your trademark counsel about the strategic goals of your trademark portfolio and the best way to protect your interests.

Belbey: Aside from specific rules and regulations for industries such as healthcare and financial services, how is social media regulated overall?

Hilfer: Broadly, the Federal Trade Commission (FTC) is tasked with protecting the American consumer from deceptive business activities, including false advertising. The FTC recognizes the power of social media to inform as well as mislead and has issued several sets of complex guidelines in this area. In addition, the fifty states all have “little FTC” acts. In addition, depending on the nature of your activity in social media, you may need to familiarize yourself with a variety of other federal and state statutes that govern different kinds of advertising and marketing campaigns. Those statutes still apply even if posting on social media. We are expecting more and more enforcement as regulators seek to clarify for consumers the nature of material they see on social media. With the proliferation of fake news and an increasing amount of sponsored content and viral campaigns, regulators are looking assiduously to prevent deception and unfair activity that can lead to consumer harm.

Belbey: What are the key legal areas that firms need to consider before they roll social media out at their firms?

Hilfer:  Social media campaigns have a variety of legal implications. Your content must meet all FTC standards for corporate and brand communications with the public. It’s also important to do some issue-spotting to see how your content may be problematic under other types of laws. Here are 5 areas to consider:

  1. Photographs and videos: Visual content on social media receives much more attention than text, but it raises complex legal issues. Who owns the copyright? Do you have releases from everyone in the photo or video? If not, you may face a right of privacy/publicity legal claim. If you downloaded a photo from a stock photo house, who has the license—your brand or your third party agency? If you are using memes or gifs, did you consider their source, their ownership, and their content? Just because it’s available on the Internet or other people have posted does not make it safe content for a brand to use.
  2. Intellectual property: Another complex area of analysis is trademark and unfair competition claims. Are you using third party trademarks appropriately? Have you made sure any trademarks, slogans, or even hashtags you create are available and won’t infringe on third party trademarks? Your legal team can help you sort through whether names, slogans, phrases, or other product identifiers are functioning as trademarks. If you are curating content, both trademark and copyright law may be implicated. The fair use exception to copyright law is a complex analysis. Contrary to urban myth, there is no 10% or 20% rule that allows you to take under a certain percent of content, particularly for commercial purposes. Instead, the facts and marketplace will determine whether your use of someone else’s copyrighted material is a fair use. Your marketing team may be moving swiftly and may inadvertently violate a third party’s intellectual property rights unless your brand has established clear content curation guidelines. Those guidelines should help to prevent claims for infringement, trade secret violation, defamation, libel, or other kinds of legal claims.
  3. User Generated Content: Your marketing team may be accepting user-generated content from consumers at large. It is a popular tool on social media. The marketing and legal teams should consult to develop strategies for soliciting and curating such content and guidelines for vetting such content to minimize risk to the brand. That conversation between marketing and legal should be ongoing. Each campaign generates its own set of considerations.
  4. Special Campaigns: Offering sweepstakes, contents, premiums or other kinds of prizes on social media requires clearance in advance to ensure you are not violating gambling or lottery laws. Social media campaigns that also involve mobile or email marketing may also mean you have to consider other statutes, such as the Telephone Consumer Protection Act, the Telemarketing Sales Rules, CAN-SPAM, various data privacy laws, and even foreign laws if it is a global campaign. If you are combining a prize offer, or any kind of sales promotion for that matter, with a charitable donation on behalf of the brand, you also will want to determine if you are a “commercial co-venturer” in the eyes of the law with special compliance requirements.
  5. Employment Issues: A social media presence has internal considerations as well. Consult with your employment law attorneys in setting up social media content to ensure that employees have the proper guidelines for what they can and cannot do on social media on behalf of the company. Also ensure such guidelines do not conflict with the National Labor Relations Board’s requirements. In addition, intellectual property counsel can help ensure that the brand remains in control of the social media content and its ownership at all times and that the brand’s intellectual property portfolio remains secure and protected.

“>

Kyle-Beth Hilfer, Esq.

Kyle-Beth Hilfer, Esq. of Hilfer Law

Evaluating and reducing legal risk is an important step when setting up corporate social media programs. However, according to Kyle-Beth Hilfer, Esq. of Hilfer Law, a NY based attorney focused entirely on advertising, marketing, promotions, intellectual property, and new media law, some firms don’t take proper precautions.

Joanna Belbey: Why don’t firms consider the legal ramifications before they start using social media?

Kyle-Beth Hilfer, Esq.: Businesses neglect legal due diligence in social media for one of three reasons. First, many brand managers or even general counsels are unaware of the complexities of advertising and marketing law. Second, businesses assume that if their competitor is doing it, it must be okay. Third, brands have not allocated budget or time for a legal check-up. Regardless of the reason, however, it’s never too late to mitigate risks with proper planning.

Belbey: What are some best practices of protecting your brand and avoiding legal issues when rolling out social media at a firm?

Hilfer: There are many steps that firms can take to mitigate risks. Here are 5 top-line suggestions .

  1. Think critically about whether your brand should be on every popular social media platform. Familiarize yourself with each social media platforms’ rules and guidelines. Determine how the platforms’ rules align with your own brand’s legal policies, and consult with knowledgeable legal counsel about the risks each platform creates for your brand.
  2. Create policies that protect your brand. Your social media policy team should consist of legal, HR, and marketing personnel so all stakeholders have a say. There is no one size fits all social media policy. Each company should draft its policies to align with preexisting guidelines for social interaction, email, confidential information, and intellectual property protection. Once you have policies in place, it is crucial to monitor your employees’ actions and the third parties with whom you interact. Enforcement of well-crafted policies often saves companies from legal liability.
  3. Bring legal counsel into the discussion early as you plan strategy and your marketing approach. Review the legal paradigms that apply to your marketing efforts. Your legal counsel should support your business goals and help you create meaningful programs with minimal legal risk. If you have the right legal relationship in place, you will find legal counsel to be a benefit and not a hindrance.
  4. Make sure any contracts with outside agencies protect you adequately. Did you provide for copyright transfer on content? Do you have access to the content (meaning being fully informed of social media handles, log in information, and passwords) so you can take control of accounts quickly if necessary? Do you know what your agencies are doing with the data they collect? Are they protecting that data in alignment with your brands’ privacy policies? And crucially, take a look at the warranties and indemnities to determine ultimate legal and financial responsibility.
  5. Focus on intellectual property rather than ROI. Metrics may be hard to pin down with social media, but the long-term benefits of brand recognition are priceless. The goal is to interact with customers in a meaningful way via social media that builds loyalty and secondary meaning in the marketplace. If done lawfully, social media campaigns can augment the value of a brand’s trademarks (indeed, trademarks are company assets and can be valued if a company is sold) as well as the bottom line. If done without consideration for legal issues, the public relations and legal fallout can damage a company’s intellectual property and leave it vulnerable to legal challenge. At least once a quarter, check in with your trademark counsel about the strategic goals of your trademark portfolio and the best way to protect your interests.

Belbey: Aside from specific rules and regulations for industries such as healthcare and financial services, how is social media regulated overall?

Hilfer: Broadly, the Federal Trade Commission (FTC) is tasked with protecting the American consumer from deceptive business activities, including false advertising. The FTC recognizes the power of social media to inform as well as mislead and has issued several sets of complex guidelines in this area. In addition, the fifty states all have “little FTC” acts. In addition, depending on the nature of your activity in social media, you may need to familiarize yourself with a variety of other federal and state statutes that govern different kinds of advertising and marketing campaigns. Those statutes still apply even if posting on social media. We are expecting more and more enforcement as regulators seek to clarify for consumers the nature of material they see on social media. With the proliferation of fake news and an increasing amount of sponsored content and viral campaigns, regulators are looking assiduously to prevent deception and unfair activity that can lead to consumer harm.

Belbey: What are the key legal areas that firms need to consider before they roll social media out at their firms?

Hilfer:  Social media campaigns have a variety of legal implications. Your content must meet all FTC standards for corporate and brand communications with the public. It’s also important to do some issue-spotting to see how your content may be problematic under other types of laws. Here are 5 areas to consider:

  1. Photographs and videos: Visual content on social media receives much more attention than text, but it raises complex legal issues. Who owns the copyright? Do you have releases from everyone in the photo or video? If not, you may face a right of privacy/publicity legal claim. If you downloaded a photo from a stock photo house, who has the license—your brand or your third party agency? If you are using memes or gifs, did you consider their source, their ownership, and their content? Just because it’s available on the Internet or other people have posted does not make it safe content for a brand to use.
  2. Intellectual property: Another complex area of analysis is trademark and unfair competition claims. Are you using third party trademarks appropriately? Have you made sure any trademarks, slogans, or even hashtags you create are available and won’t infringe on third party trademarks? Your legal team can help you sort through whether names, slogans, phrases, or other product identifiers are functioning as trademarks. If you are curating content, both trademark and copyright law may be implicated. The fair use exception to copyright law is a complex analysis. Contrary to urban myth, there is no 10% or 20% rule that allows you to take under a certain percent of content, particularly for commercial purposes. Instead, the facts and marketplace will determine whether your use of someone else’s copyrighted material is a fair use. Your marketing team may be moving swiftly and may inadvertently violate a third party’s intellectual property rights unless your brand has established clear content curation guidelines. Those guidelines should help to prevent claims for infringement, trade secret violation, defamation, libel, or other kinds of legal claims.
  3. User Generated Content: Your marketing team may be accepting user-generated content from consumers at large. It is a popular tool on social media. The marketing and legal teams should consult to develop strategies for soliciting and curating such content and guidelines for vetting such content to minimize risk to the brand. That conversation between marketing and legal should be ongoing. Each campaign generates its own set of considerations.
  4. Special Campaigns: Offering sweepstakes, contents, premiums or other kinds of prizes on social media requires clearance in advance to ensure you are not violating gambling or lottery laws. Social media campaigns that also involve mobile or email marketing may also mean you have to consider other statutes, such as the Telephone Consumer Protection Act, the Telemarketing Sales Rules, CAN-SPAM, various data privacy laws, and even foreign laws if it is a global campaign. If you are combining a prize offer, or any kind of sales promotion for that matter, with a charitable donation on behalf of the brand, you also will want to determine if you are a “commercial co-venturer” in the eyes of the law with special compliance requirements.
  5. Employment Issues: A social media presence has internal considerations as well. Consult with your employment law attorneys in setting up social media content to ensure that employees have the proper guidelines for what they can and cannot do on social media on behalf of the company. Also ensure such guidelines do not conflict with the National Labor Relations Board’s requirements. In addition, intellectual property counsel can help ensure that the brand remains in control of the social media content and its ownership at all times and that the brand’s intellectual property portfolio remains secure and protected.

Let’s block ads! (Why?)


Source link

Load More By elspoka
Load More In Social Media

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Check Also

Tips For Playing Red Dead Redemption 2

Red Dead Redemption 2 is an absurdly big game, full of secrets, systems, and hidden surpri…