By Jeffrey A. Levine
Social media has become an integral part of our personal and professional lives. It is nearly impossible to find an individual or organization without a corresponding Facebook, Twitter, LinkedIn, Instagram or Snapchat account. While the benefits of social media are readily apparent, the legal risks that accompany it are often overlooked. At the touch of a button, social media users can distribute a message to a plethora of recipients – and expose themselves to a plethora of legal risks. Users must recognize and manage these risks in order to optimize the benefits of social media.
The widespread culture of sharing content on social media often leads to over-disclosure by its users. The pure volume of information that can be mined from social media may allow competitors, and even criminals, to connect the dots and discover confidential or sensitive information. The more information a user posts, the more dots for competitors and cybercriminals to connect. In addition, inexperienced users may be tricked into downloading viruses and malware that compromise confidential information or intellectual property. As the tools and techniques employed by cybercriminals become more sophisticated, so too must the defense strategies of social media users. A stagnant approach to security efforts and an improper culture of content-sharing could have serious or even catastrophic consequences.
Social media allows users to post an endless amount of content, including protected content that may be copyrighted or trademarked. The Internet makes it easy to copy and paste content from one site to another. However, the mere presence of content on the Internet does not mean it can be used by others on social media. As companies continue to benefit from social media interaction, many have found themselves in legal trouble due to intellectual property violations. There has already been a great deal of litigation regarding unauthorized practices such as quoting copyrighted writings, posting copyrighted television and movie clips, playing copyrighted songs, and displaying trademarked logos. Companies must monitor the actions of their social media accounts, as well as protect their own valuable intellectual property, in order to effectively leverage the power of social media.
Companies that use social media to promote their products and services must comply with all relevant advertising laws and regulations. The law treats advertising via social media the same as it does in the context of traditional media. The backbone of consumer protection law is Section 5 of the Federal Trade Commission Act, which is enforced by the Federal Trade Commission. As with advertising through any channel, social media users must ensure that their advertising claims are truthful and accurate before disseminating them. They must also clearly and conspicuously disclose all material information regarding offers made in their advertisements. Social media advertisements that fail to comply with FTC regulations may result in regulatory investigations, fines, civil lawsuits, and irreparable damage to a company’s goodwill.
The ubiquitous nature of social media has made it an unrivaled source of evidence. Social networks are packed with social interactions and information generated by and about those interactions. This information is often highly relevant in the context of litigation, and the parties to litigation may seek to obtain this information via discovery or subpoena. Since parties to litigation are entitled to discovery of all relevant, non-privileged information, social media content is subject to discovery, despite the privacy settings imposed by the account user. The duty to preserve this content is triggered when a party reasonably foresees that it may be relevant to issues in litigation.
The topics discussed above represent only a small sample of the multitude of legal issues implicated by social media use. Social media will inevitably continue to grow and evolve, as will the laws pertaining to it. Only after its users recognize its inherent risks will they be able to coordinate a precise and comprehensive plan to optimize the benefits that social media provides.
If you have any questions or concerns about the legal ramifications of your social media activity, or seek assistance in drafting a social media policy, please contact Jeff Levine at firstname.lastname@example.org.