Legally Speaking: Social Media Miscues

T Clement
Thomas P. Clement, MRA Vice President, Operations & General Counsel

The effective use of social media as a marketing tool does not typically fall within the purview of the legal department at the Michigan Retailers Association. However, having sat in enough meetings with our extraordinarily capable marketing team, the legal team knows that social media is essential to business growth. Some business owners choose to go all-in and see a lot of success. Some choose to dabble in the social media space, oftentimes with mixed results. Few choose to avoid it, whether because they already have a solid customer base or due to their own preferences. Those who take advantage of social media should be aware that for the many benefits it can bring, there are legal pitfalls you should avoid.

A few of the most significant, and easily avoided, legal pitfalls are outlined here. As with most other business decisions, common sense should be used when making posts on social media and, if there is any question about whether a post is legal and appropriate, you should first seek out the answer from a reliable source. 

Copyright Infringement and Attribution
It is easy to dress up a social media post by including a picture or phrase that you found online. This can be problematic if you use material that is copyright protected. A copyright is a unique creative work that entitles the author or creator to legal protections and exclusive use. If you use copyright materials without the appropriate permission and attribution, you may be liable for copyright infringement. Sanctions for copyright infringement can include actual damages, surrender of profits realized from the use of the material, monetary penalties, attorneys fees, costs, and more. 

Illegal Sweepstakes or Promotions
Oftentimes we see social media posts which promote various contests that a business is offering. Conceptually, this is a great idea. Everyone loves to win or receive something for free. But these types of promotions, whether advertised on social media or not, can run afoul of the law. This is particularly the case if the audience is required to purchase or do something in order to participate. There is a previous Retailer article on this very topic, written by our President & CEO and available on our website, if you care for more detail. For now, some specific highlights to keep in mind. Make sure your contest does not require a purchase or any other participant action, short of signing up, in order to participate. Develop a specific set of rules for the promotion that are readily available. Exclude minors from participation and, if possible, always have a lawyer review both the rules and the social media post itself. 

Accurate and Deliberate Posting
A social media posting can be made or re-posted in a matter of seconds, sometimes before the author truly has time to consider what they are sending out into the world. We regularly see celebrities, professional athletes, and everyday people finding themselves the subject of unwanted media scrutiny due to a poorly thought-out comment on social media. For a business, an inartful or inaccurate post can be devastating for sales and downright embarrassing. Consider the news station that inadvertently posted that Queen Elizabeth had died or the company that wished Americans a happy Fourth of July next to a picture of the Liberian flag (at least the Liberian flag is red, white and blue, but still). 

These are a few humorous examples, but the humor quickly disappears when a company accidentally posts about sales they cannot honor, product inventory that does not exist or makes comments that are inaccurate, or worse, offensive. These types of errors can lead to financial loss for a company. For example, a company may be required to honor misplaced promises or may be subject to regulatory oversight. In order to avoid these plights, it is important to have a vetting process for all social media posts, preferably with multiple levels of review and consideration prior to posting. 

Develop a Policy
Business owners need to be mindful of the social media posts of both the business and the employees, in their personal capacity. One affirmative step you can take to avoid social media miscues is to develop and enforce a specific policy. In your policy you should distinguish between personal and company posts and the different guidelines that should be followed.

Here at MRA, we have a simple and clear written policy regarding use of personal accounts that all employees are required to review and acknowledge. The policy outlines the purpose and objective in its creation, defines “social media,” establishes guidelines and directs the reader to a specific person in management if there are any questions. 

Included in the policy, employees are encouraged to post favorably about the company from their personal accounts, but not required to do so. When posting, employees are reminded to indicate that the views expressed are their own and that they must respect copyright, fair use and financial disclosure laws when discussing MRA. Employees are also prohibited from providing confidential, proprietary and sensitive information or referencing any members, partners or agents of MRA without their approval. 

Posts on behalf of MRA (company posts) may only be made by authorized individuals that are granted access to our various accounts. Authorized individuals are required to follow certain protocols when creating and posting. Protocols  include multiple levels of review,  adherence to subject matter that is related to MRA’s core mission, and messaging that is generally informative, positive, and of value to members and the general public. 

Social media can be a great asset for business growth and nothing in this article is intended to dissuade you from taking advantage of it. But, like most other things, it is always good to know where trouble spots reside and avoid any miscues. Happy posting!

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