The Top 7 Social Media Legal Risks – And How to Avoid Them
With the majority of the adult population of the United States spending half of their waking hours on social media, getting your business on these platforms is NOT optional – it’s a necessity. Considering the low price and massive reach afforded by social media, if you’re not marketing your business online, you’re leaving a LOT of money on the table.
However, although social media marketing is one of the best investments you can make in your business, it’s not without risk.
Read on to find out how to avoid social media legal issues that can turn into full-on disasters if you’re not prepared.
Yes, This is Important – And No, it Can’t Wait.
If you read my blog, follow me on social media, or are a member of Renegade Legal, you probably know my mantra: don’t put off addressing your legal issues until you need to hire a lawyer, because at that point it’s already too late. You can spend a couple hours and a few hundred bucks on some legal CYA work up front, or you can spend $50,000 defending yourself (and losing) in a (totally avoidable) lawsuit later. It’s up to you.
But take it from someone who’s talked to hundreds of entrepreneurs about how they WISH they’d hired a lawyer before making a stupid mistake in their first week of business that ended up surfacing at the worst time possible and wiped them out in the third year: ignoring your legal issues is one of the worst business decisions you can make in your entire career.
So what are these social media legal issues?
1. Getting Banned from Facebook, Google, YouTube
and other platforms
The platforms on which you operate are run by big companies. Companies that comply with the law. Companies that have entire departments that exist for the sole purpose of making sure that their users also comply with the law (they know about vicarious liability and want to avoid it) – and removing users that don’t.
What does this mean for you? Only that your accounts may be banned and your content may get removed if you ignore the legal rules.
I can’t even count how many stories I’ve read about users’ content being removed from social media because the videos and images in their posts were violating someone else’s intellectual property rights. (In cases of copyright, all it takes is a DMCA takedown notice from the owner of the work for the platform/host/ISP to take it down). Whether you’re on YouTube, Instagram, Facebook, Snapchat, LinkedIn or some other platform, you can go to their terms and conditions and find language advising you that any content prohibited by law or violating the rights of others will be removed. Not only that, if you become a repeat offender, your entire account may be suspended or outright
That’s right – social media platforms may terminate your account for ignoring the legal rules, and there’s often no way to restore it, meaning ALL the revenue generated from that particular channel disappearing in an instant.
2. Getting Your Clients’ Social Media Accounts Shut Down
If your services include managing your clients’ social media accounts, you may not only get your own accounts
Imagine having to explain to a client that their accounts were terminated – along with the revenue streams generated from those accounts – because you didn’t know that there were legal rules to follow.
3. Lawsuits, Embarrassment, And Ruining Your Reputation
Add to this scenario the potential embarrassment and almost definite hit to your reputation when those clients tell their friends and colleagues about their experience with your service, and you might be looking at polishing up that resume and going back to that 9 to 5.
4. Getting Fined by the FTC and Other Government Agencies
If your advertising falls under FTC jurisdiction, potential negative consequences of making false or deceptive claims – even on social media – include getting a cease and desist from the feds, along with a $40K-ish fine… for each violation; getting an injunction from a federal court along with an order to refund consumers (which is often worse than a $40K fine); civil penalties; as well as civil or criminal contempt proceedings that you may be subjected to if you fail to follow a court order.
Are you scared yet? Good – let’s take a look at some of the most common social media legal mistakes made by small businesses that you definitely want to avoid.
1. Don’t Use Other Business’ Branding Elements
Let’s start with business names, product/service names, and
Remember – all these brand elements are protected under trademark law, so if someone else is using the name, logo or tagline you have in mind for an existing product or service in a similar niche or industry, that name, logo or tagline is off limits.
The solution? It’s quite simple – pick something unique. Do your research and make sure the name you have in mind is not too similar to someone else’s brand. Use google, use the TESS system at the USPTO website, and if you’re serious about your brand, hire an attorney or other third party provider to do a comprehensive search for similar marks that you may not find on your own (since both Google and TESS will only give you exact matches, rather than marks that are similar in spelling, sound
I know – the whole process just sounds like a pain in the ass… and it kind of is. But the last thing you want is to spend massive amounts of time, money and energy building goodwill around a brand only to find out a year later that you need to re-brand from scratch (and to make things worse, possibly pay the owner of the trademark damages). A small investment of time and money on the front end can save you from a world of suffering years down the line when you lose everything in the trademark battle of your life. You’ve been warned.
I’ll just briefly mention here that you definitely shouldn’t choose a name because you want it to be confused with a famous brand or person! It can get you in big trouble under cybersquatting and/or impersonation laws, plus in some
2. Don’t Use, Copy or “Borrow” Someone Else’s Content
If you use someone else’s music in your video without permission, you’re committing copyright infringement.
If you use someone else’s video clip in your marketing, you’re committing copyright infringement.
If you’re distributing someone else’s e-book for leads, you’re committing copyright infringement.
If you use copyrighted characters in your marketing (like Darth Vader or any of Marvel’s superheroes), you’re committing copyright and/or trademark infringement.
If you copy your competitor’s masterpiece of a “humble-braggy yet at the same time so authentic and vulnerable it doesn’t even read as the fucking pitch that it is” post that you just know brought them
And in the case of Facebook, the copyright owner doesn’t even have to complain about the infringement for the content to be taken down without warning. According to some reports, Facebook can now detect copyrighted music playing in the background of live videos and ban users who are shown to be repeat offenders – without anyone making a single copyright violation claim.
So what’s the solution?
Get permission (a “license” in legal terms) from the copyright holder to use any music, images or written content such as blog posts, killer status updates
If this is not possible, write your own content, create your own images, sign up for subscription-based image
Facebook even has a collection of royalty-free songs that you can use in your videos without violating their terms and conditions (or the law).
3. Put All Agreements In Writing
If you read my blog, follow me on social media, watched or listened to any of my podcast appearances or are a member of Renegade Legal, you know I’m like a broken record when it comes to having written contracts for all of your agreements.
This post is no exception. A license to use someone else’s copyrighted work and/or trademark is not only absolutely necessary, it absolutely has to be in writing, properly signed by both parties.
This is your only option. Verbal agreements and handshake deals are as worthless as it gets, and as a personal
You need to have written contracts with EVERY person who has ANY role in your business – including people involved in your marketing and social media management, as well as people and businesses from whom you license your images and other creative content.
Of course, there’s always a small chance that you’ll be fine without a written contract. But if you ever find yourself in a disagreement as to who actually owns your social media posts, graphics
What you absolutely don’t want is to have to pay me, or someone like me, five or six figures to make the mess you created go away – especially where the whole thing it could’ve been avoided or resolved for less than $5K had you put the right agreements in place.
4. Always Disclose Affiliate Status
It’s not uncommon for businesses to partner up and promote one another’s products. The important thing to keep in mind is this: if you’re receiving anything of value in exchange for promoting another company’s product or service, federal law requires that you let your readers know.
To ensure compliance, always include language in all of your affiliate posts that clearly communicates to your followers that a) you’re being compensated (for example, “This is a sponsored post” or “This post contains affiliate links,” or something similar), and b) the name of the company compensating you.
5. Implement CYA Measures With Employees and Contractors
Many businesses outsource social media activity either to an employee, a freelancer or an agency. It makes sense – handing over management of your online presence to a professional can save you time and money while making you appear more professional on social media.
But before you hire a social media manager for your business, make sure you implement certain CYA measures to ensure that there is no business interruption even if your social media manager leaves your business.
As you may have guessed, my top recommendation is to always have a contract outlining a) your company’s social media policy and b) exactly what happens when you and your employee or contractor go your separate ways.
A social media policy is a document that outlines what is expected of your employees and contractors, particularly those whose duties include representing your business online. It should familiarize them with the basic legalities of online conduct I’ve outlined in this post, and clearly state what conduct is allowed and prohibited. Most social media policies contain provisions advising personnel to keep the company’s confidential information confidential; respect intellectual property rights; use common sense; and ensure that all posts made on behalf of the business are aligned with the company’s image and values.
In terms of going separate ways, one of your top concerns should be to ensure that you don’t lose access to your social media accounts, content, and contacts when your social media person leaves. Some best practices include setting up your page under your user account and never that of an employee or a
6. Don’t Use Other People’s Name and Likeness Without Permission
I get it – social proof is sexy. Reviews, endorsements
But there are certain legal rules when it comes to social proof and endorsements that you need to be familiar with, so you don’t do stupid shit like tagging Katherine Heigl in a photograph of her holding your product with a caption that implies she endorses your brand (true story bro).
The issue here is a legal rule called the “right to publicity,” which gives all people the right to control how their name, image, and likeness may and may not be used. The specifics vary by state, but one thing that is uniform across the board is that you can’t use a person as an “endorsement” of your product or service without getting that person’s explicit permission.
So how is this relevant to your business?
Let’s take testimonials, for example. We all love getting them, posting them on Facebook, displaying them on our sales pages, and e-mailing them to our list…
However, consumer protection laws provide that testimonials may ONLY be used if the person or business posting them GETS PERMISSION FIRST.
Even if a client or customer decides to post a testimonial on YOUR FACEBOOK PAGE, you can’t just take a screenshot and paste it on your sales page without asking first and getting written permission from the client.
And it doesn’t end with just permission. Advertising laws also state that businesses may ONLY testimonials in connection with the specific product or service for which they were given. This means that you CANNOT use a client’s post raving about your life coaching services from five years ago on a sales page for your newest exercise program.
The other major concern when it comes to respecting people’s right to publicity relates to pictures, audio recordings, and video.
If you’re going to use somebody’s photograph, voice, video or drawing on your social media pages, the law requires that you get permission first. In writing.
You don’t want a person emailing you after seeing the video, demanding that you take it down because you never got their consent to use their likeness and they were having a bad hair day.
You may have to take it down, and if a lawsuit gets filed, you may have to pay damages to the individual – and without a written consent and release, you have no evidence to fall back on.
Whether you host a podcast, have guest bloggers, put on live or virtual events, or are simply documenting your entrepreneurial journey Gary Vee style, make sure that whoever appears in your videos, blog posts, events and episodes signs the appropriate releases which allow you to use their name, likeness (and other information) as may be necessary for your purposes.
b) how and why you collect said personal information;
c) how you use and process their personal information
There is a wide variety of ways businesses screw up when it comes to their privacy policies. These are a few of the most common (and most avoidable) mistakes:
Inadequate privacy measures. If you didn’t take appropriate precautions to protect the privacy of your users, and this failure results in a data breach or compromised user information, you can find yourself in massive legal trouble.
This is the reason you need to STOP copying privacy policies from sites like Amazon, or from other businesses in your industry. Chances are, their data collection and processing practices will be different from yours. If you want to avoid lawsuits and fines, get your own.
Social media can undoubtedly be a great asset and massive revenue generator to your business, but you need to be mindful of the legal risks involved. Before you start running those ads to millions of people, do a legal audit of those ads, landing pages, websites and sales funnels to make sure you’re a) not infringing on anyone’s IP; b) have all the required website documents and disclosures in order; c) not using anyone’s name or likeness without permission; and d) have written contracts for every business relationship.
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