Check out this list of legal issues to consider when using
social networking sites to create, manage, and sponsor content.
By A.J. Zottola
Incorporating the use of social media and online networking sites into an
association's larger communication, membership, or marketing strategies raises
a number of potential legal risks and liability issues for the association. The
following is a non-exhaustive list of legal issues to consider.
public than you think. An association
should always be careful about what it posts, and assume that greater (not lesser)
publication or disclosure is possible.
2. Avoid use of material obtained without permission, and provide
proper attribution for content taken from other sources. Given the
ease with which content and material can be obtained or posted online, even
within social networking sites, avoiding copyright infringement will always
remain a concern for associations.
3. Be careful with allowing others to post content. When
managing an online social network that enables the posting of content by a
third party (e.g., a member),
such content functionality can give rise to liability for copyright infringement,
torts, or defamation.Avoid encouragement of unauthorized use or copying
of third-party content, and where possible, seek the consent of the author, owner,
or subject before reproduction or use.
4. Know your identity and role. Monitor your interactions with
other users, and be sure you can verify your association’s own posted material
from messages or material from other sources.
5. Pattern behavior to take advantage of potential immunity. The
federal Digital Millennium Copyright Act of 1998 lays out certain safe harbors
for Internet service providers that could provide protection from copyright
infringement claims. Similarly, the federal Communications Decency Act of 1996
offers safe-harbor protection for providers or users of interactive computer
services from civil liability for defamation, invasion of privacy, negligence,
and trespass claims.
6. Consider hyperlinks to third-party sites. Although mere
linking may not suffice to find copyright or trademark liability, an
association should never frame, deep link to, or incorporate any third-party
content without permission when it links to other sites or pages.
7. Don't misuse trademarks. Third-party trademarks should be
used by an association in its online social media (with permission when
possible), and with extra caution when use is in a commercial context.
8. Be careful with sweepstakes. An association should always
seek legal counsel before implementing an online sweepstakes or contest through
a social network.There are numerous state laws and regulations that
govern online contests, lotteries, and sweepstakes.
what you say when you market. An
association should be careful with any practice that is really advertising in
disguise.There are federal and state rules and guidelines to be mindful
of in this area.
10. Don't ignore the rights of privacy or publicity. Privacy
considerations, particularly with respect to children under the age of 13,
still apply to social networking sites.
11. Be careful when sending unsolicited communications. Even
inside a social networking site, email and other forms of viral campaigns (particularly
for commercial messages) can remain subject to laws governing unsolicited email
such as the federal CAN-SPAM Act of 2003.
12. Monitor blogs and other instant communication forums. Govern
with clear policies regarding appropriate content, and use such policies to
help manage the association's responsibility and potential
liability.Every association needs a clearly stated take-down policy.
13. Protect your intellectual property and use proprietary
notices. Consider use of a ™, ®, and/or © symbol in connection with
more prominent placements of intellectual property. Otherwise, provide notices
and conditions for any use of intellectual property by other users within an
online social network.
14. Guard against antitrust risks. Social networking sites and
related media can make it easy for members to let their guard down and share
information that could lead to a violation of antitrust laws. Remind members
that they may not communicate via association-sponsored social networking to
make an anti-competitive agreement or even to share competitively sensitive information.
15. Don't ignore employer/employee considerations. An association
should define its role and the expectations it has for its employees’ behavior
when they are using social networking sites for association business purposes.
A.J. Zottola is a partner at Venable LLP in its Technology
Transactions & Outsourcing Practice Group.This article is not
intended to provide legal advice or opinion and should not be relied on as
such. Legal advice can only be provided in response to specific fact