Social media platforms have become an increasingly common forum for social interactions around the globe. To illustrate their burgeoning popularity, Facebook, alone, garners about 1.9 billion unique daily users. Given the widespread usage of social media by consumers, many businesses are exploring ways to use these platforms as marketing vehicles. Social media marketing efforts may include inviting users to join groups/visit pages organized around a product, service and/or brand, advertisements targeted to individuals based on social media usage patterns, and the use of brand ambassadors, or social media “influencers.”
Just as social media venues are a relatively new phenomenon, the legal implications of social media marketing present a new and ever-evolving framework. Due to the significant risk of violating state and federal laws applicable to social media marketing, it is vital that businesses retain qualified legal counsel familiar with this emerging field of law.
What Are the Legal Implications of Social Media Marketing for My Business?
For business owners that engage in social media marketing by either establishing a presence through social media accounts or through the retention of influencers, legal issues unique to the space must be addressed. Below are some social media marketing legal issues that should be considered before proceeding:
- Business owners must ensure that their marketing and consumer outreach efforts at all times comply with the Terms of Use, Platform Guidelines, and Privacy Policies of the applicable social media venues. In particular, business owners that collect consumer personal information via social media websites must ensure that their own privacy policies, as well as the privacy policies of the applicable social media websites, allow for the contemplated collection and use of consumer data.
- Businesses involved in social media outreach must carefully monitor employees tasked with consumer interaction to ensure that those employees do not violate any laws applicable to defamation, harassment, or other prohibited acts.
- Where a business retains an influencer to promote a product, service and/or brand, that business must require the influencer to comply with relevant Federal Trade Commission (the “FTC”) guidelines. For example, the FTC requires influencers to prominently disclose their financial interest in connection with any product endorsements. The following documents should be reviewed and incorporated into any contractual arrangements with influencers: (a) the FTC’s Guides Concerning Endorsements and Testimonials; (b) the FTC’s Disclosures 101 for Social Media Influencers; (c) the FTC’s Do’s and Don’ts for Social Media Influencers; and (d) the FTC’s Do you endorse things on social media?
- Where a business permits users to upload text, video, audio and other content to its social media pages, that business must ensure that it has taken steps to comply with the requirements of the Digital Millennium Copyright Act (“DMCA”). Where a business complies with the DMCA, that business will generally avoid liability for copyright infringement in connection with material posted by third-parties.
Avoiding a Tough Call
Without ensuring that contractual relationships, privacy policies and marketing practices include provisions that are necessary to comply with relevant social media marketing/data privacy laws, there is an increased likelihood that business owners may suffer significant regulatory and legal liability. Given the level of risk involved, it is recommended that businesses retain seasoned marketing law counsel. Such counsel can help ensure that any social media marketing efforts are conducted in compliance with applicable laws, rules and regulations, as well as the Terms of Use/Privacy Policies of social media websites.
Please note that this is only a brief overview of some of the legal issues surrounding social media marketing.
If you are interested in learning more about this topic or require assistance in connection with your social media marketing efforts, please e-mail us at: info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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