October 13, 2010
by Larisa Tehven
In this post, I’ll explain some best-practice social media policies that derive from social media laws like the Digital Millennium Copyright Act (DMCA), along with more best practices in social media that can protect companies’ brands and reputations in this increasingly interconnected world.
1. Post a DMCA notice and take other steps to ensure full DMCA protection.
The safe-harbor provisions of the Digital Millennium Copyright Act (17 USCA § 1201) will provide protection from third-party posts and comments that infringe on other parties’ copyrights as long as the company complies with some threshold requirements:
- There must be a policy that provides for the termination of repeat infringer’s access to the site
- There must be an agent appointed and on record with the Copyright Office to receive notices of alleged infringement
- The DMCA “takedown” provision requires the prompt removal the allegedly infringing content upon receiving notice of the alleged infringement
2. Screen user-generated content before publishing.
Whenever possible, user-generated content should be screened prior to publication. If a post potentially violates the site’s policies or terms, the screener should decline to post the content. In situations where users can post comments at will, such as on social networking sites, companies should remove or request the removal of posts that may pose a legal risk (see the DMCA safe-harbor requirements above).
3. Disclose endorsements from paid bloggers and employees.
Companies using testimonials and endorsements need to consider the FTC Guides (16 C.F.R. §§ 255.0), which require disclosure of “material connections” (compensation arrangements) between companies and consumer endorsers. The bottom line: if you are paying or otherwise rewarding bloggers to provide favorable comments about your product or brand, you need to disclose that relationship. This includes employment relationships, so if you have employees making favorable comments on social media platforms, that relationship should be transparent.
4. Monitor your brand in the social media universe.
Companies should regularly monitor both their own social media platforms and third-party sites for potential misuse or misrepresentation of their brand and for infringing use of trademarked or copyright-protected company material. Free and subscription-based internet tracking tools are widely available and can be set up to automatically monitor key terms associated with a brand or product.
5. Know what you can and can’t do with social media.
Most social networking sites have policies in place that govern the use of their platforms. For example, Twitter prohibits “spamming” as well posting content that infringes on third-party intellectual property, privacy, or publicity rights. LinkedIn prohibits dissemination of unsolicited advertising or promotions, and late last year Facebook issued new guidelines governing promotions and contests. Companies using these platforms for marketing campaigns should consult the applicable terms and conditions of each network prior to launch to ensure compliance.
I hope this overview has provided some guidance as you and your clients engage in social media marketing to support a business. Check back over the next several weeks for the next series of social media law posts where we’ll move into a discussion of social media in relation to the practice of law.
Larisa Tehven is a licensed attorney and senior marketer for Westlaw.