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Social Network and the Law - 12/15/2009 -

Here's a list of legal tips and issues to consider in connection with using social networking sites to manage or sponsor content.

By Jeffrey S. Tenenbaum, Esq. and A.J. Zottola, Esq.

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 tips and issues to consider in connection with using social networking sites to create, manage, or sponsor content. These tips also can be considered with respect to the types of policies and guidelines to implement with members and others that connect with an association through an online social networking site.

1. It's more public than you think. A considerable disconnect remains between the extent of information believed to be shared on a social networking site and the reality of what is not only available for display or review, but also what is being preserved for future display and use. An association should always be careful about what it posts and assume that greater (not less) 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 significant concern for an association. Use caution in posting content that is not procured by or provided to your association with permission. An association also should remember to abide by any license terms and ensure that the right to use extends to electronic formats (or otherwise modify its license forms/permission to secure such rights).

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. This advice aplpies to the actual posting of content as well as to acts that give rise to availability, such as storing content for further re-distribution or display. Be especially careful with negative content that identifies a particular person or entity or additional commentary to content created by unaffiliated authors; such acts can create publisher responsibility and liability.

4. Know your identity and role. Social media sites can make it easy for another user to act seemingly on behalf of an association. As such sites are not controlled by the association itself, it is important to clarify the association's role in the content distribution. This is especially true with respect to declaring what constitutes the official page, site, or communication of the association within an online network and distinguishing these from unaffiliated pages, sites or communications. 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 Digital Millennium Copyright Act of 1998 (DMCA) lays out certain safe harbors for "Internet service providers” that could provide protection from copyright infringement claims, and the Communications Decency Act of 1996 (CDA) offers safe harbor protection for providers or users of interactive computer services from civil liability for defamation, invasion of privacy, negligence, and trespass claims. In both cases, however, the immunity is only available for liability resulting from the publication of information provided by a third party. Ideally, an association should remain a mere content conduit rather than a provider or creator of the information posted. The more editorial or publishing control taken, the less likely the protections under the DMCA or CDA will be available.

6. Consider hyperlinks to third-party sites. Although mere linking may not suffice to find copyright or trademark liability, an association should avoid directing other users to exploit any content or materials available on a third-party site or page. Moreover, 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, with respect to products or services, or in connection with campaigns, sponsorships or endorsements.

8. Be careful with sweepstakes. An association should always seek legal counsel before implementing an online sweepstakes or contest through an online social network; especially if a prize having cash value will be awarded. There are numerous state laws and regulations that govern online contests, lotteries and sweepstakes. Certain prize or reward practices can constitute illegal gambling.

9. Watch what you say when you market. An association should be careful with any practice that is really advertising in disguise. For example, blogging about an association or its activities can in fact be treated as advertising when there is content posted regarding a product or service. Recent FTC guidance on blogging indicates that the FTC may penalize bloggers who make an endorsement of a product or service without disclosing the material connections with the seller of the product or service (such as being compensated by the seller). For more on the new FTC guidance.)

10. Don't ignore the rights of privacy or publicity. Be mindful of publishing information concerning individuals that may not be generally known or available to the public. Privacy considerations, particularly with respect to children under the age of 13, still apply to social networking sites. If personal data collection is desired or anticipated by an association, then it should consider posting a privacy notice describing the data collection and use practices.

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 e-mail such as the CAN-SPAM Act of 2003. Therefore, always consider whether the recipient has provided consent to the receipt of any communications and obtain such consent for commercial messages. At a minimum, always use opt-out notices for commercial messages.

12. Monitor blogs and other instant communication forums. The frequency with which blogs and other instant communication tools such as Twitter can be updated increase the liability exposure for an association. If a blog will be used by an association's own employees or by other users, it should be governed by clear policies regarding its content and use to manage the association's responsibility and potential liability. A clear take-down policy also should exist.

13. Protect your intellectual property and use proprietary notices. With most social networks, copying is not only the sincerest form of flattery but also is the easiest way for intellectual property rights to be infringed or diluted. To assist with protecting intellectual property rights, an association should consider use of a ™, ® and/or © symbol in connection with more prominent placements of its intellectual property and otherwise provide notices and conditions for any use of its 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 the antitrust laws. Remind your members that they may not communicate via association-sponsored social networking to make an anti-competitive agreement or even to share competitively sensitive information. In addition, an association should caution members against making comments that could be seen as an attempt to rally others to engage in a boycott of a supplier, customer or competitor. On the association's social networking pages and sites, it is a good idea to post your antitrust guidelines, including procedures for reporting potential violations.

15. Don't ignore employer/employee considerations. An association should define its role, as well as the expectations it has for its employees' behavior when they are using social networking sites for association business purposes. Moreover, as most social media are largely comprised of copyrightable works, an association should carefully consider the scope of the work-made-for-hire doctrine and the use of written assignment of rights agreements with individual authors, particularly non-employees (both volunteers and paid vendors/consultants), to ensure ownership of material that should be owned by the association. Free speech rights relating to an individual's activities within an online social network also can impact these considerations.

In summation, an association should develop internal and external policies to address the risks described above. Remember that the terms of service provided by social network providers are primarily for the benefit of the social network providers—not the association as a user. In particular, an association should consider the implementation of a policy statement and contractual provisions that address responsibility, indemnity, limitation of liability, disclaimers, antitrust compliance, and intellectual property use and ownership.

Jeffrey Tenenbaumchairs Venable's Nonprofit Organizations Practice Group. A.J. Zottola is a partner at Venable in the Business and Technology Transaction Groups. Jennifer Mallon, an associate with Venable, also contributed to this article.


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