Understanding the Legal and Practical Risks of Social Media

Facebook, Twitter, Google+, Pinterest, Reddit, blogs, vlogs – today’s social media outlets provide any number of ways for people and businesses to connect, from sharing photos and recipes with friends and family, to planning vacations, to building your customer base or hyping a new song, movie, or product.

Most people and businesses, however, are too busy enjoying this ‘golden age’ of digital inter-connectivity to think about the legal and practical dangers inherent in social media.  The following information is provided as a courtesy to help you understand, and hopefully avoid, some of the more common personal and business pitfalls of social media.


Personal Risks of Social Media

  • Confidentiality –  Information communicated between you and your lawyer, doctor, priest, and others, may be protected by confidentiality or privilege laws.  This means it may not be accessed by others or used against you in court.  Sharing this information online, however, might be seen as a waiver of those protections.  Be careful and think twice about what you are posting.
  • Anonymity –  Many have the false impression that comments posted to online forums, news outlets, or blogs are anonymous.  Just post it under hamm3rtime1981 and nobody will know it’s you, right?  Wrong.  There is no such thing as anonymity on the internet.  Everything online can be traced back to its source.  Any time you post anything online, do so on the assumption that everybody in the world may find out it was you that wrote it.
  • Children –  Nowadays everyone uses the internet to find whatever it is they are looking for, even child predators and bullies.  Be aware of your children’s internet activity and talk to them about online safety and how to handle and report inappropriate behavior.
  • Other Legal Risks –  Increasingly, Facebook updates and Tweets are being used as evidence in divorce, child custody, and criminal cases.  No matter how innocent you may think your posts are, consider what it may look like to others, like a judge or jury.  That photo of you pretending to shotgun a beer outside the football stadium may cost you in court later.

Business Risks of Social Media

  • Intellectual Property and Likeness Rights –  Thought should be given and care exercised before using content created by others to promote your business without their permission.  Using another’s words or graphic designs may violate copyright laws.  Additionally, using someone’s photo (or other identifiable feature) may violate his or her rights of publicity and/or privacy.  In today’s digital age it is easier than ever to fall into these traps.  If you are uncertain, don’t do it until you can speak to your attorney.
  • Company Reviews –  Finally getting around to creating that company Facebook or other site’s page should be considered carefully.  On any site that allows customers to post reviews, sometimes just one bad review, even if undeserved, or worse, completely fabricated, can devastate your business.  Before signing up, be sure to look into things like: Who controls what users see, you or the site?  How long do negative reviews or ratings stay on your business profile?  Is there a way to remove or dispute negative comments?
  • False Advertising and Defamation –  In promoting your own business or products, think twice before engaging in comparisons to your competitors.  In advertising, not only must you speak honestly about your own business but you must also be honest about your competitors.  Opinions about your own products and services are generally okay – “the best full-service laundry in Oregon” – but don’t chance it with your competitors’ – “John Doe’s laundry is the worst.”  Any false claims boosting the qualities or attributes of your business may violate false advertising and/or unfair trade practice laws, while false statements about a competitor that harms his/her/its reputation me be grounds for a defamation suit.
  • Account Ownership –  When you asked your assistant to create social media profiles for your business you probably didn’t think about who would own those profiles when he or she is no longer with the company.  The same is probably also true of content posted on those profiles by your employees.  These are new issues and no bright line rules exist yet in the law.  To protect your business it is generally best, however, that these profiles are set up independent of any actual person’s account if possible, or as alter-egos of your own profile, where necessary, and your employee handbook or employment contracts should explicitly define who owns what.  Additionally, consider provisions stating that it is against company policy to use company social media outlets to discriminate, disparage, defame, or engage in other tortious conduct.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

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