How well do you know the legal aspects of social media? Answer True or False to each of the following statements and find out.
Social media consists of Facebook, Twitter and Instagram
False. Social media consists of these and many, many more such as: review sites (like Yelp), image-sharing sites (like Pinterest), resume and business connection sites (like LinkedIn) and over 400 more. A great definition of social media I like to share comes from the FFIEC: “a form of interactive online communication in which users can generate and share content through text, images, audio, and/or video.”
LinkedIn is not a social media platform it is a professional platform
False. LinkedIn IS a social media platform by definition because it allows for interactive and shared communication. For example, LinkedIn Groups provide a forum for networking and sharing information as well as experiences and knowledge.
Social media is free
False. Social media is not as expensive as traditional media, but it does have a cost – the cost of time and resources (including staff) to apply it correctly and to protect the most valuable thing your company owns – its reputation! As for letting it be free, employees and customers can be wonderful ambassadors for your brand – but do you know what they are saying? Do they rave or do they rant? Are you part of the conversation? Are you responding in a way consistent with the law? Make sure you have the right legal guidelines, policies, and protocols in place to help you maximize your social media benefits and minimize your risks such as a potential PR crisis.
You have to be on social media
True and False. This depends on where you are at in your career or how your firm is positioned. You do not have to be on ALL social media platforms – but as attorneys we do have a duty of competency to understand how these platforms work so we can best defend our clients’ interests. It takes less than 5 minutes to set up a Twitter Account, a little longer for a Facebook Fan Page. The technical logistics are 1-2-3. But before you do (even if you’ve done so already) think about what you are trying to achieve with social media? Is it more customers, more exposure, more sales? Do all your social media accounts have the same name? Do they relate to your company name? Are you protecting your trademark as you create these different accounts? Thinking about these questions is one thing, but you need to take some time to answer and reflect on your responses. Then you need to put the answers in a central location that you and your company can refer to keep you on track [and legal]. You need a social media plan that is feasible, effective, and in compliance with professional, ethical, and legal rules.
No one needs to know who you are on social media
False. “Anonymous” has taken on a new connotation in the digital era – indicating that someone has something to hide – whether an agenda or a private vendetta – or is a “troll” – an individual who wants to create trouble for trouble’s sake. Today, people who are avid social media users apply the principal of transparency in order to build trust with their constituents, clients, and colleagues. They put out there who they are with their credentials. Their social media profiles offer more than just standard resume particulars, including details of achievements, community engagement, and samples of their work. Key item to remember is to make sure you are who you say you are. The Federal Trade Commission (FTC) issued a notice in 2011 that they would begin to crack down on fraudulent credentials listed on social media profiles as false advertising. Also important is disclosing any affiliation or sponsorship (like being given a product for free to review it) when blogging or posting about a product or company. “Astroturfing,”giving a review under a false identification, is considered an ethical violation and can have certain financial consequences.
Employees can post anything on social media but employers can fire them if they don’t like the content
False. Employees can say a lot on line that employers cannot discipline them for. But they do not have card blanche for everything. The National Labor Relations Board has issued a number of memorandums and an approved social media policy to help guide employers as to what they can and cannot regulate of their employees social media and online activity.
Privacy is automatic on social media
I can post anything, I can copy anything, I can delete anything on social media
False. This may be tempting to believe, but may be a wrong assumption on your part that can lead to being sued for violation of the First Amendment and Freedom of Speech. If you allow your customers to post comments on your site (user-generated content) have you put up guidelines so they know the purpose of the forum, what they can and cannot post, what would be considered offensive, that the forum is moderated, and that you reserve the right to delete such comments5? If you have not, you may have created a “public forum” and you have no right to just delete information posted there that you do not like. It is a “free speech zone” and the only way to remove something is to have a compelling reason to regulate and take down. This holds especially true for public-serving institutions and state agencies.
The European Union fought for and won against Google what it believes is a basic right being threatened by today’s digital and social media giants – the Right to be Forgotten (in French le droit à l’oubli—or the “right of oblivion”). For now, however, the rule in the US is that what you post and put out there is permanent. There are back- ups to back-ups, memory caches, copies sent to friends, etc. As they say “What happens in Vegas ends up on Facebook” – and most times it’s because we put it there. Don’t want people to see it – don’t put it up. As attorneys we have a duty to inform our clients to be cautious of what they post but we cannot advise them to delete or remove anything especially in the middle of a lawsuit – spoliation of evidence.
Information posted online “expires” when the one who posted it does
True and False. Your digital legacy is the combination of your many points of digital interaction in the online space – including financial accounts, social media accounts, content you posted online, online subscriptions, online photo collections, and more. Do you know the access information to all these accounts? When you are gone who will inherit your digital property? Do you want to control who does and what they do with it? It is estimated that most individuals in developed countries will create approximately 88 GB of data in their lifetime. This includes Twitter tweets, Facebook posts, bookmarks, photos, artwork, logos, videos, blogs, email, etc. What will happen to all this digital property if not specified in a digital will?
There are no rules and current laws don’t apply to social media
False. There are rules in the social media world – unwritten cultural norms in this digital environment. There is a language that the insiders know and there is a protocol to the conversation. Social media is about currency (what is important at this moment), authenticity (credibility and trust), and relevancy (to who is reading or interacting). Violating any of these rules can lead to a slippery slope of legal violations. State and federal current laws do apply – because they are the laws that we have. But these laws are being challenged, changed, modified, and recreated, with new laws proposed every day.
Disclaimer: Information provided in this column is for general educational purposes and should not be construed as legal advice.
Vector Art courtesy of vectorya.com.