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Using Social Media Channels To Reach Consumers
Mercedes K. Tunstall, EsquireOf Counsel, Consumer Financial Services Group202.661.2221tunstallm@ballardspahr.com
February 17, 2011
Steven D. Kim, EsquireAssociate, Intellectual Property Department215.864.8758kims@ballardspahr.com
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What is Social Media?
From OnlineMatters.com: Social media is any form of online publication or presence that allows end users to engage in multi-directional conversations in or around the content on the website.
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What is Social Media?
Social Media is often recognized by its features:• Web or mobile-based tool or platform;• Allows users to not only contribute content, but also to comment
upon posted content;
And, compared to traditional media:• Conversations conducted via social media have increased
visibility;• Publishing via social media has a lower cost;• Social media is extremely scalable.
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Types of Social Media
• Social Networks (e.g., Facebook, MySpace, LinkedIn)
• Online Communities (e.g., BigSoccer.com, BabyCenter.com, SmallBusinessOnlineCommunity.com)
• User-generated content fora (e.g., YouTube, Flickr, Vimeo)
• Blogs (e.g., AbovetheLaw, Bankervision)
• User Ratings and Reviews (e.g., Amazon.com, TripAdvisor)
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Facebook: The 500 lb. Gorilla
• More than 500 million active users
• In August alone, users spent 41.1 million minutes on Facebook
• Facebook COO reported that companies are increasing advertising spending on site at least tenfold
• At the forefront for many social media legal issues, including privacy concerns, ownership of posted content, vulernabilityof minors, etc.
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Online Communities
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YouTube
• 24 hours of video uploaded every minute
• 14 billion videos viewed in May 2010 alone
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• Over 100 Million users
• Average of 750 Tweets-Per-Second (“TPS”) 65 Million tweets per day
• Peaked during FIFA World Cup at 3,000 TPS
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Two Flavors of Tweets: Customer Service and Public Relations
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Blogs and User Ratings and Reviews
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Everyone is Doing It . . .
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YouTube
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When Your Clients Want to Use Social Media
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Initial Questions
• How will social media be used?- Marketing, customer service, encourage customer dialogue, public
relations
• What sites do they want to use?- Third-party sites
- Corporate sites
• Do they want to have an active voice in the discussion?
• Just a word about social media listening, or “crowd sourcing”
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Uses of Social Media
• Marketing purposes- Traditional advertising law concepts apply
- Make it clear that the post/content/forum is marketing
- Be careful about how user comments are used
- User-generated content contests
• Customer service- Same rules apply
- Take special care to understand how to use the social media vehicle to protect customer privacy
- Best bet is to use social media as a vehicle for identifying customers with problems and then to direct them to existing channels
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Uses of Social Media (cont.)
• Encouraging Customer Dialogue- Must take the good with the bad
- All or nothing
- Use care in identifying when company is participating in the dialogue
• Public Relations- Commercial speech
- Forward-looking statements
- Allowing executives to have a voice
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Legal Issues to Consider
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Ownership of Content
• Trademark and copyright concerns
• Use of posted content for other purposes- Assert ownership or obtain non-exclusive worldwide license?
• When do you become liable for content?- Are you an editor or a publisher?
- Take any and all steps to remain the publisher
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Facebook: Who owns what?
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IP and Twitter
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Links and links
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Secondary Liability
• You might be liable for the infringing acts of others- copyright
- defamation
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Section 512(c) of DMCA
• Section 512(c) of DMCA creates limited immunity:• “Service provider” is not liable for monetary relief for copyright
infringement by reason of the storage at the direction of a user of material that resides on a system or network controlled by or operated by or for the service provider where there is:
- No knowledge or red flags;
- No financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
- Service provider acts quickly to remove or disable access to theinfringing material upon notice.
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North vs. South
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CDA Section 230
• Applies to providers or users of interactive computer services;
• Applicable unless one of three exceptions: - Intellectual Property
- Federal crime
- Electronics Communications Privacy Act
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CDA – Cats and Dentists Act
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Liability for Content
• Protect against common law defamation actions
• The question of moderation- Using third parties
• Terms of Use and Moderation Guidelines
- Pre-submit v. post-submit
- Internal Policies and Policing
• Statutory Methods: - Section 230(c) of the Communications Decency Act
- Digital Millennium Copyright Act
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Terms of Use and Moderation Guidelines
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FTC Endorsement Guides
• Revised Guide effective on December 1, 2009• Place specific requirements on bloggers and companies
whose products or services are reviewed in blogs- Underscores importance of being truthful when something posted
in social media is marketing or sponsored
• Affirm that endorsers can face personal liability for false or misleading advertising
• Eliminate the safe harbor previously afforded by a “results not typical” disclaimer
• Serve as an excellent reminder to be careful about how user ratings and reviews are used.
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It’s not a game . . .
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Twitter: How to Disclose?
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Blogs: How to Disclose
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Other Potential Minefields
• Privacy- Online privacy is hot in 2011
• Minors- Cohen v. Facebook (hearing on March 17, 2011)
• Interaction with mobile applications• Discovery
- Crispin v. Audigier
• Internal use• Screening for employment
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Checklist
• Initial Questions- How will social media be used?
- What sites will be used?
- Will you have an active voice?
• Register DMCA agent
• Decide on appropriate level of moderation
• All of the same rules apply, so pay attention to regulatory issues or concerns just as you normally would
Thank You