These are some of the social media elements currently in vogue, leaving company leaders with plenty of questions.
Should a business use social media to stretch its marketing dollars, to cost-efficiently reach key customers and targeted consumers?
Must a company do anything special to guard against harm to its reputation or business, caused by others using social media?
As with most business issues, social media considerations involve not only marketing but also legal issues.
No exceptions to the rules
With the advent of the Internet, there was a feeling that because it was a unique media form, it was exempt from the laws that regulate more traditional media. Of course, that is not the case.
It's important for businesses to remember that all the general laws relating to intellectual property and consumer protection apply to social media and the Internet. In fact, the Federal Trade Commission recently revised its Guides Concerning Endorsements and Testimonials in Advertising to reflect the current state of communication media, noting that social media was a major consideration in the revisions.
For example, the revised guidelines require a company that pays a blogger - in any way - to write favorably about the company's products or services, to clearly disclose the nature of those payments to the public. The guides make it clear that payments to a blogger include such things as sending free product samples or having an advertising or promotional agency engage a blogger's services for any type of compensation or payment.
Naturally, a business using social media must be careful not to infringe on others' intellectual property rights or misrepresent its own products.
But, because of the very nature of social media, it may be a bigger challenge to guard against harm from others.
Keeping close watch
One of the inherent characteristics of social media is its immediacy - Twitter's tweets and Facebook's comments are constant.
Even if a business does not have its own presence in social media, it should be monitoring Internet activity that involves its company name and its brand names. Monitoring helps guard against intellectual property infringement, defamation and other harms.
Regular searches using Internet search engines such as Yahoo or Google, as well as searches on specific social media sites, can provide good information but also will require a regular time commitment.
Many businesses have someone who monitors competitive activity, including routine reviews of key competitors' Web sites. It's possible that the same person also could perform general Internet and social media monitoring.
Potential protection
Social media Web sites have user agreements - often called terms of use - that can provide intellectual property and other legal protection. For example, the Twitter site's trademark policy section specifies the type of activity that it considers to be trademark violations, and it also provides a procedure for trademark owners to report such violations. If a business believes that its trademark has been infringed, it can follow Twitter's procedure and file an online report about the activity. It is very important, however, to follow up on the report to ensure that it has been properly evaluated and handled.
It's also critical to read all the language in user agreements as it may include things that a business does not wish to commit to, such as specific jurisdiction and venue requirements for future legal actions that may ensue. Be sure to read the agreement before registering a business name or brand name as a user name for social media sites, as this can constitute acceptance of the user agreement.
Adopt a social media policy
Social media use by a company's own employees also is a concern. For example, the Federal Trade Commission has stated that employees who endorse their company's product on any message board must also disclose that they are employees of the company. Furthermore, even an employee's personal social media messages may expose an employer to liability. Therefore, it is important that companies establish reasonable social media policies that require transparency and honesty and reflect the company's values.
Attorney William D. O'Neill is a partner with Senniger Powers LLP in St. Louis. The firm represents several Springfield-area businesses, including KO Manufacturing, Spot-Not Car Washes and Positronic Industries Inc. O'Neill specializes in counseling and litigation in trademark, copyright and unfair competition law. He may be reached at woneill@senniger.com.
