18
May

Social Media and Risk Management

Policy and legal challenges arising from the growing use of social media sites are making the news almost daily. The ease with which groups can be created opens new opportunities for businesses and associations.

However, each new trend poses its challenges. Technological advancement runs ahead of the law, so calculating risk exposure is difficult. Fortunately, to some extent, the legal issues connected with social media sites are not really all that new.

In this article, we discuss the types of concerns you should have with your social media forums and how to address them. This includes specific items you should cover in your organization’s social media policy. If your organization has already started an online group or forum and does not have a policy, you can start using one now.

How to maintain control over social media forums hosted on other websites

The key issue presented by the use of social media by businesses and associations is the need to maintain control of the forums even though they are hosted on third-party websites. The policy should make it clear that participation in the social media forum is conditioned on adherence to your rules, and that access can be terminated if the rules are violated. Other disciplinary measures, even termination of association membership, may become necessary. (Membership termination procedures must be in compliance with your bylaws and applicable law.)

Your policy should apply to all of the association’s social media forums. The policy should be distributed to each member (and other users) and prominently posted on the social media forum. Clicking to accept should be required where possible. You should reserve the right to modify your policy in the future. And because the social media forum is not hosted on your organization’s own website, the policy should make it clear that the hosting site’s terms of use apply as well.

As a practical matter, you cannot screen every post for violations, and you are not required to do so. You should, however, take action as soon as you become aware of violations. Make sure your policy reserves the right to remove or edit posts, but does not impose a duty to do so. Provide a contact address where others can report violations to you, and act swiftly and prudently to address these violations.

Two major legal issues to cover

If you could only get a few things right with your policy, you would start with copyright and antitrust. Move from there into rules covering conduct and issues such as defamation and disclosure of trade secrets.

Copyright law and the internet continue to struggle to understand each other. As the law adapts to meet new challenges, make sure your site is respecting of copyright ownership. The policy should make clear that each post must be the original creation of the author or that the author has a license or a good faith belief that they are allowed to post the content under copyright law. The posting member must also understand they are irrevocably licensing the content they post to your association or company, as well as to the other members of the group.

A similar approach goes for use of corporate names, logos, and other trademarks. Forum posters should only use marks they have permission to use, or use marks in a way that will not confuse others about affiliation or origin of the content.

The member who posts content must be aware that he or she is liable for the content that is posted — not only for copyright and trademark violations, but for any other liability that arises from the post. It is easy to copy and paste, or fire off a hasty response. An effective policy causes members to think before they post.

Antitrust law in the social media forum

Your company or association likely has an antitrust compliance policy. If it doesn’t, put one in place as soon as possible. Incorporate your antitrust policy into the social media policy. At the least, the member needs to be aware that the social media forum is like another meeting where competitors are present, and that the same rules apply.

Defamation

Your social media policy should guide users to avoid defamation liability. A code of conduct is the best approach. The code of conduct should address off-topic discussion; inappropriate messages containing profanity, racism/discrimination, or sexually explicit content; improper use of the forum for advertising; attacking or threatening others; revelation of corporate confidences, trade secrets, or private information about any person; impersonation of others; and “hacking” or intentional distribution of viruses. Online communications allow individuals to say things they might otherwise not. Anticipate problems and have rules to cover them. In the end, your association is looking for an open and free forum for communication, but one that is respectful, on-topic, and beneficial to the members and to your industry.

Lastly, enforce the rules. Without enforcement, rules are meaningless. Protect those who use forums responsibly. Post warnings or reminders from time-to-time. Directing the conversation towards meaningful discourse will help turn a chaotic medium into an organized and powerful tool.

Conclusion

If you take care of the items included in this article, you are off to a good start. Not everything about social media forums can be covered here. Start with these basics and get a policy in place. As the law develops along with the technology, you can update your policy as needed.

Rob Sumner and Garrett Tomlinson are consultants and attorneys with Sumner & Associates, P.C. in Atlanta.

rsumner@sumnerfirm.com



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