September 2, 2014

Navigating Social Media Legal Risks: Keeping Your Marketing Legally Safe

Navigating Social Media Legal Risks“Go tell that long tongue liar, go and tell that midnight rider, tell the rambler, the gambler, the back biter.  Tell ‘em that God’s gonna cut ‘em down.  Tell ‘em that God’s gonna cut ‘em down.” ~ Johnny Cash in God’s Gonna Cut You Down

This is one of my favorite Johnny Cash songs, one that speaks to a punishment coming no matter where the bad guys go.

Most social media users aren’t bad guys, but disagreement on behavior and expectations can make the Internet feel like the wild wild west, with inadvertent “ramblers” who tweet the wrong tweet or “gamblers” who ignore the legal consequences of a promotion.

Moreover traditional legal perspectives are struggling to keep up with nascent social media behavior and technological advances.  I can say for analytics the concerns of Do Not Track has forced many advertisers to consider actions to address current legislation that can easily misconstrue analysis intent.

A legal expert has now captured the best of legal interpretations of social media.  Navigating Social Media Legal Risks: Safeguarding Your Business, by Robert McHale, ESQ  (@rmchalelaw) with Eric Garulay, will keep you from becoming the social media “gambler.”  The book examines how social media behavior is shaping the legal world, and what your business should do to protect itself.

McHale, a founding partner of an IT and intellectual property law firm, brings expertise to full bear in clear language. I requested a review copy from the publisher Pearson when I saw a flier at a Barnes and Noble.  The 12 chapters are worth the read for anyone seeking a grounded real-world perspective on social media.

Putting Legal Language on Everyone’s Social Tongue

McHale’s approach in Navigating works because he operated outside of the advertising world, an environment that has been hyper-stimulated with new tools and applications at every turn.  The book offers 12 chapters on varied business uses of social media (all with U.S. interpretation of the law). Each chapter can stand alone for a quick reference and contains easy language that avoids getting too specific while never talking down the reader

The result is an actionable book.  A good fit for the cautious small business owner willing to jump into social media waters but desiring to know what Internet seas contain potentially rough waves from a legal perspective. You’ll learn the cases and interpretations surrounding policies such as the Digital Millennium Copyright Act and the Children’s Online Privacy Protect Act, with useful notes and insights abound in each chapter.

The key chapters which small business owners will find particularly useful revolve around advertising and employee conduct:

  • Social Media Promotion Law: Contests and Sweepstakes

According to McHale, people use the words sweepstakes and contest interchangeably, but there is a difference. McHale explains that difference, and potential result from implying an ongoing promotion:

“Internet sweepstakes must also avoid being classified as illegal online gambling; otherwise, the sponsors risk  severe criminal and civil penalties under the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA).”

  • Online Endorsements and Testimonials

“Disclosure” is the definitive word in this chapter, as FTC guidelines seek to establish a connection between those paid to endorse and the sponsor of the program.

  • The Misuse of Social Media in Pre-Employment Screening

Companies need to ensure that background information is not collected in violation of the FCRA.  McHale provides an example of a case of 6 mobile background screening apps that received a warning from the FTC.

Most notable for those with Facebook concerns is how friending can be questionable:

“An employer who circumvents an applicant’s privacy settings on social media sites – by having a colleague “friend” the applicant for purposes of obtaining information they otherwise would not have access to, for example – might be exposing itself to a claim for invasion of privacy.”

  • Legal Risk of User Generated Content

“Because social media sites are not exempt from traditional copyright laws, copyright infringement is unquestionably the greatest intellectual property legal issue facing UCG (User Generated Content)…care should be taken to ensure that all necessary rights for publication on social networking have been properly assigned and that any uploaded content is noninfringing of another’s copyright.”

There’s not a deep examination of Do Not Track – the debates center on technical uses of browsers – but Chapter 7’s coverage of Social Advertising reminds one of the range of the FTC.  CAN-SPAM and the specter of personal identifiable information is explained. You’ll have a better discussion with an analytics specialist when examining the impact of tags and analytic solutions.

McHale does an excellent job to enlighten overlooked details without scaring you away from social media. The thoroughness is superb, including notes from cases and a thoughtful do/don’t chart in the chapters.

We learn so much from one another online, but sometimes forget to ask about real world safeguards when it comes to creating online activity such as sweepstakes and establishing internet communities.

After reading Navigating Social Media Legal Risks, you’ll come away with a more pragmatic view of how to work with people on the Web.  It’ll be a terrific view, because you’ll be well equipped to form solid questions that need answers – answers that make a good idea a great one.

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Pierre DeBois - Associate Book Editor


Pierre DeBois Pierre Debois is Associate Book Editor for Small Business Trends. He is the Founder of Zimana, a consultancy providing strategic analysis to small and medium sized businesses that rely on web analytics data. A Gary, Indiana native, Pierre is currently based in Brooklyn. He blogs about marketing, finance, social media, and analytics at Zimana blog.

3 Reactions

  1. Financial planners really have to watch their social media strategies if they’re registered investment advisers. The Investment Advisers Act of 1940 prohibits testimonials in advertising, so there are many cases where a post or comment or even tweet can be interpreted as a testimonial. Furthermore, during audits, you have to show your advertising, to include online ads. There are companies like Arkovi which can archive them for you. The last thing you want is for some innocuous LinkedIn recommendation to bite you later on.

  2. I think this article is also timely considering the latest internet marketing push of curation. Too many people are just copying material and leaving themselves open to risk.

    • Michael,

      You raise an excellent point about curation – unfortunately scraping material still exists. Moreover, social media and analytics practitioners have to vet businesses who take up these practices. Makes no sense to measure data on a business that is providing content that is not theirs.

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