On April 13, I had the pleasure of attending a class at Suffolk Law School, “Social Networking Sites: Law, Policy & Practical Strategies.” Although it was a long day, it was an information-packed session which taught me innumerable lessons of value. Here are 5 of the most important to consider as you go about your everyday digital marketing practices:
1. Know Your Site’s Rights
As U.S. citizens, we are afforded such rights as the Freedom of Speech, which offers few restrictions with the exception of the clause that originated from the famous Sullivan V. NY Times case: Actual malice must be proven before press reports about public figures can be considered to be defamation and libel. Today, the same regulations apply to website content. Nearly all sites have their own set of privacy regulations and are very often privately operated, allowing site owners to make the rules in a sense.
A famous example of alleged website trademark fraudulence occurred in the Tiffany Inc. V. eBay case. While eBay was accused of selling counterfeit Tiffany jewelry on its site, the court ultimately ruled in eBay’s favor. eBay defended its use of Tiffany’s marks under the doctrine of nominative fair use, arguing it was “entitled to inform third parties of the availability of listings of Tiffany merchandise on its website.” The company also argued that it had adequate fraud-detection processes in place, including systems that allowed Tiffany employees to monitor Tiffany auctions and submit to eBay a Notice of Claimed Infringement form (“NOCI”) requesting investigation and removal of any auction offering counterfeit goods. The fact that eBay was “not fully aware” of what was happening with counterfeit items and had a system in place to put an end to it was enough to make the court rule in its favor.
Today, website owners are also protected by the Digital Millennium Copyright Act, which has notable safe-harbor provisions in place that protect Internet service providers from the consequences of their users’ actions. These safe harbors remove operator responsibility from policing website content, automatically removing posts that are in question and placing them under review.
2. It’s Time to Revise Your Social Media Guidelines
When revising your social media guidelines, the first thing to do is to watch out for broad confidentiality clauses. A social media policy needs to be directed toward employees at all levels. It needs to be clear, concise, and easy to follow. It also needs to be flexible due to the constant evolution of social media.
Some companies have implemented non-disparagement clauses, which restrict individuals from taking any action that negatively impacts an organization, its reputation, products, services, management, or employees. Also, as social sites encourage sharing and interaction, it is important to include clauses regarding the use of logos on social profiles.
To protect sensitive company data, obvious measures like marking documents as “Confidential” will limit disclosure to those who need to know. More in-depth ways to protect information include separate logins and warnings for the most sensitive confidential information. Companies can also encrypt sensitive data, prevent downloads and printing, and block certain sites. Adopting in-depth social media policies will allow employees/social users to understand clear boundaries regarding logos, data, and confidential information.
3. What Is Going to Happen in Europe & the UK Will Affect the US
The European Union is implementing changes regarding personal data protection, and the UK will be the first affected on May 26. From Europa.eu, The EU Privacy and Communications Directive will address concerns of personal data relating to the delivery of communications services. All location-based services will require opt-in of the user, and these services may only be used to convey communication or billing. “Spam” messages will be virtually erased, as the directive takes an “opt-in” approach to unsolicited messages, meaning users will need to give consent to these messages before they will receive them. Cookies will also become opt-in; users must also give their consent for information to be stored on terminal equipment. This loss of information for marketers could spark a serious blow to revenue, as personalized advertisements and “spam” will be severely affected.
4. Whatever You Do, Don’t React Too Fast!
If an incident occurs where something is released that should not have been, oftentimes the best way to mitigate the reaction is to leave it alone for the time being. Barbara Streisand would know this better than anyone. In 2003, an aerial photo of her Malibu coastline mansion surfaced on the web from a photographer claiming the photo was taken to show coastal erosion per an order of the California Coastal Records Project. When Streisand filed a lawsuit, citing privacy violations, her attempt was unsuccessful. Because of Streisand’s lawsuit, “Image 3850, which had been downloaded from the photographer’s website only six times, two of which by Streisand’s attorneys, received more than 420,000 page views the following month. As a result, public knowledge of the incident increased substantially.
5. Be 100% Aware of What the FTC Is Doing
Lastly, it is vital to stay on top of current FTC regulations and policies. As the digital world evolves, so do the rules and regulations. Oftentimes, the best way to avoid digital marketing disasters and lawsuits is to understand these regulations and perform regular check-ups. All it takes is one instance for a brand to lose respect in the digital world: Information can spread like wildfire, leading to the demise of a brand or product. So, play by the rules and leverage everything the digital space has to offer without fear, as there are plenty of ways to protect your brand or website.
Although I’m not a lawyer, this is good advice from marketer to marketer on the legal laws and implications I think we should be aware of.
