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Protecting Yourself From Social Media Lawsuits

Guest post by Indra Gardiner, founding partner and COO at BG Creative. She spends her days thinking about social media, public relations and digital strategies for her agency’s consumer focused clients. You can find her on Twitter or, if you’re lucky, behind a rolling pin making a fresh pie.

Hide! The Lawyers Are Coming

Social networks give people the ability to share incredible volumes of content. People are sharing photos, ideas, writings and video. All that stuff? It’s called intellectual property and in each case it belongs to somebody.

A recent presentation at the PRSA Counselors Academy, by Michael Lasky, Partner and Chair of the Public Relations Law Practice at the law firm of Davis & Gilbert in NY, provided a wake up call to those in attendance about how the law is slowly creeping into the social landscape and why responsible marketers had better pay attention. Download Michael’s presentation here.

Been Caught Stealing

Let’s start with content creation and copyright issues. We all know how much “lifting” goes on in the Internet. Those who create content in an environment of “sharing” often find their ideas, photos and sometimes entire paragraphs repurposed without their permission. Having clear language on blogs and websites puts the public on notice about your position vis a vis copyright. In other words put a copyright, all rights reserved on your content or the bottom of your blog. One day you may need to point to it if you or your client is ripped off and you want to take legal action.

Read the fine print. Have you read the Terms link provided by Facebook, Twitter or YouTube? In the case of Facebook, once you sign up for an account and click agree, you have granted them non-exclusive, transferable, sub-licensable, royalty-free, worldwide rights to use any IP (intellectual property) content that you post on or in connection with Facebook (“IP License”). Did you catch that part about being transferable and sub-licensable? Basically they can take that gorgeous photo that you paid a photographer to shoot for your product, hotel or client and use it however they want. You don’t lose ownership rights, but you do lose control over how your content can be used. This is particularly important when managing branded client materials. Did your content creator (photographer, writer, designer) give you permission to post their work on Facebook or YouTube and hand over their control to Mark Zuckerberg?

A Policy of Protection

While speaking recently to a room full of ad agency folks, I asked the audience if they had a social media policy in place for their staff. I found myself facing a room full of blank stares. Yikes. If your team uses social media at work, particularly for clients, you’ve got to have a policy. Todd Defren and Dell have both shared excellent examples to build from.

The FTC encourages social media policies be in place and reviewed. Remember all the hubbub last fall when the FTC released its Guidelines for Blogging and Social Media? Marketers have a responsibility to ensure that bloggers are providing disclosure and that statements are not misleading or unsubstantiated.

Companies must also uphold privacy laws. In 2007, a breach of contract suit was brought against Inc. because the plaintiff’s wife learned about her husband’s infidelity directly from the online florist who, despite a privacy policy on its site, sent a card to their home thanking him for his business. She promptly divorced him so he turned around and sued them.

Having a privacy policy or a social media policy is not enough. You have to train employees too. Having a social media policy is considered an enforcement action by the FTC, which can be important if you are sued for misleading or unsubstantiated claims on a blog or by a blogger. Plus it provides the opportunity to clearly state your transparency policies around actions like employees posting on discussion boards for clients, endorsements and objectionable content.

We’re going to see more and more case law around social media, intellectual property and online piracy and privacy. And the lawyers will be ready.

(photo by Mark Collins)

Facebook Comments


  1. says


    You raise good points about intellectual property, licensing and FTC affiliate disclosure since those are often those “gray” area concerns among businesses and individuals. However, I find these are limiting as the intent of the post appears to be to share several different angles of legal vulnerability through social media.

    IANAL, but I want to share a few other areas that people should know:

    * Libel/Slander – Just make sure everything is truthful and accurate.
    * 2257 Compliance – Does your website have UGC, how do you manage seemingly-adult content and its compliance?
    * COPPA – Do minors use your website and do you mine data for marketing? Keep it in compliance.
    * Freedom of the Press/Media – Should you feel obligated to cite sources if asked for it? Know the limitations and the extent here.
    *FTC Disclosure Requirements – The recent changes from the FTC don't just apply to bloggers; rather, anyone who is compensated for promoting a product/service. No “results may vary” safe harbor statements, either.
    * Employee/Employer Social Media Conflicts – What should an employer do when they find offending content? Termination may not be legal and could open up a world of legal risk. Not hiring either could be just as risky.

    Those are just a few. I laid the bait and shared a riff on each one. I don't know the full extent to each piece, but would love a legal expert to take these on and help us out in the social media space. If you look at all these, these aren't social media lawsuits per se, but rather about content, licensing and the responsibility a person burdens.

    Overall helpful, but would love a more extensive post on this subject.


    • Indra Gardiner says

      Hi Joseph –

      Each of the areas you list deserve their own blog post. Jay was generous in sharing his blog but he wasn’t going to give me that much room! I hope Michael Lasky will take a look at your comments and provide some more insight – he’s the lawyer (I’m just the lowly marketer) and I have found him to be a fascinating source of information around these issues. Michael did talk about 2257 and FTC disclosure in his presentation so if you click through on that link you will read more there.

      I think the issues of copyright and responsibility are going to continue to grow and deserve much more attention in the blogosphere. Perhaps I will continue writing about the subject on my agency’s blog –

      Thanks for pointing out other critical areas for consideration.

  2. says

    >In other words put a copyright, all rights reserved on your content or the bottom of your blog.

    Thanks for the reminder; just did it.

    For you fellow WordPressers out there, go to Appearance > Editor and open footer.php. You'll see a line that resembles this:

    © 2008-09 <?php bloginfo('name'); ?>. |

    I've just changed mine to

    © 2008-10 <?php bloginfo('name'); ?>. All rights reserved on the content of this blog. |

    Your mileage may vary, your attorney may advise different language and these may not be the droids you seek. But do something.

  3. dabushaw says

    So, are you violating copyright when, say, posting a link on Facebook… especially one that includes a photo that now displays on your Fan Page?

    • says

      Not necessarily; fair use still applies. Wikipedia has a good explanation of it ( Facebook substantially degrades image quality that are posted into a feed and merely linking to a piece of content is not infringing on it — if anything, it promotes it.

      Now if importing a feed of content (e.g. Notes app) from a copyrighted source that you don’t retain the license is in violation of Facebook’s TOS. As far the legal aspect, all a trademark/copyright holder has to do is submit a DMCA request and Facebook has to review and take action on it.


  4. Indra Gardiner says

    Keeping in mind that I am not a lawyer…I think we have all sort of tacitly agreed that in the spirit of “social” we will share links that include content, photos and other potential artworks that in some cases will be owned by copyright. Indeed, I do believe there is a violation when you share someone's work on Facebook (thus giving FB the right to use it elsewhere) without getting the content creator's blessing. Will they pursue you? Generally not. So far.

  5. says

    As far as I know, an IP holder can always submit a DMCA complaint and Facebook is obligated to respond to it. Considering Facebook acts as more of an aggregator than the actual source (like a blog post), it would seem more prudent for them to go through the provider hosting the content, like a web host.

    Do you know of any examples where an IP holder had successfully removed infringing content posted by another user? I had experience in defending our company's trademark when someone used it for a vanity URL and it was pretty effortless.

    Anyhow, it definitely poses some interesting legal challenges when content spreads like wildfire. For practicality, it would seem that if something shouldn't be shared, place an authentication mechanism prevent access to unauthorized users, watermark images and don't provide the easy means to easily share content (like a FB share button, for instance) and keep an IP attorney on retainer. 😉


  6. Cameron King says

    Good article. An important reminder. Basically let's remember what we learned in high school about cheating and not be stupid.

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