A Legal Perspective on B2B Social Media

As you have incorporated social media into communication planning for your B2B company, whether large or small, chances are you worked with the company legal team or outside firm. While these legal teams are in place to protect the interests of the company, some are just not familiar enough with social media to provide appropriate counsel for your efforts.

The following email interview with India Vincent and Howard P. Walthall, Jr., both partners at Burr & Forman LLP, provides some thoughts, not legal opinions, about the legal approach to social media.

1. What are some of the main legal issues (liability, risk, copyright) that delay companies from beginning to use social media?
All of the issues companies address with other forms of marketing and customer communication (including false advertising concerns, copyright infringement, regulatory issues, proper message, etc.) are all present in social media. The catch is that in order to use social media effectively, companies must devise ways to address these concerns, or at least mitigate the risks, in a more timely manner. Responding quickly does not mean ignoring the potential risks, it means developing more timely ways of addressing the risks.

For example, if a company is developing a new marketing campaign, the materials must be reviewed to ensure that there is nothing that could serve as the basis for a false advertising claim. Postings on social media must be reviewed for the same purpose. It is important that anyone tweeting for the company, blogging, responding to a customer email, or otherwise interacting with the public through electronic channels have a general understanding of the boundaries of false advertising and be aware that their st atements in these different forums could create liability for the company if the statements are over-reaching.

There are some advertising issues which are especially significant in the social media context as compared to traditional media. These usually involve the failure to disclose the true identity or corporate affiliation of a person touting the firm’s products or services via social media. This can happen, for example, when an employee posts a glowing review of a company’s products without disclosing the employment relationship, or when a celebrity does the same thing without disclosing that the company is compensating the celebrity for his or her comments.

Other legal issues familiar to advertisers also come up routinely in social media marketing. For example, someone managing a Facebook page for a company needs to understand not only false advertising issues, but at least the basics of copyright and privacy issues. If photographs are to be posted on a Facebook site or the company’s website, it is important to ensure you have permission to use the photographs, from the source of the photographs and, in some cases, from the subjects as well. Briefly educating those responsible for managing these websites in the requirements for obtaining proper permissions can go a long way to minimizing risks.

2. How has your team approached these issues so clients can communicate using social media?
Our clients who use social media effectively usually have a small team of people dedicated to managing the social media efforts. Those people are educated in the legal risks associated with advertising and social media, and are provided with ongoing updates as the rules continue to evolve. That is not to say that this team of people are experts in addressing legal risks, but they are able to spot the concern and in most cases to adjust the message in order to avoid or limit the risk.

In many cases, these people also have designated contacts in the legal department or with outside counsel so that they have a relatively efficient method of getting answers when something falls outside of their comfort zone. Those designated legal contacts are also educated on the impact of social media and the need for timely responses to such questions.

3. Are there any legal cases that have provided guidance on either side of the issue of social media participation?
There have not been many legal cases yet focusing on this specific issue. However, any company interested in developing a social media policy should review the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (pdf) which was recently revised to address social media issues, among other things.

4. How much does a social media policy influence the legal approval process?
Policies which clearly delineate which activities can be carried out without legal approval, and which cannot, can help greatly in mitigating the time constraints involved with legal review. Such policies not only give the social media team some room to operate in “real time,” but also help improve the response time on matters that do require legal approval because there should be fewer requests submitted to legal. Those responsible for the social media efforts should always look for ways to adjust the posting to comply with the policy, and only when that is not possible should requests be submitted to legal. If the social media team is finding that every posting they make is outside of the policy and requires independent legal approval, then the policy probably needs to be revisited. It is also important that the policy specify items which will always require legal review, such as contests.

5. Are there companies that you look to for examples, and say if they are comfortable with social media, our clients can be too? Or even companies where you can contact their legal department and understand their comfortable level?
There are sometimes particular uses of social media that we use as references when a client wants to adopt a similar use of social media, but we do not hold particular companies out as good or bad examples. Use of social media requires a strategy customized for the company in order to be successful. In addition, every company has its own level of acceptable risk and legal concerns based on its business model, its particular products and services, and any regulatory requirements applicable to its industry. As a result, the legal implications of each company’s social media strategy are different and must be considered independently, rather than copied from another company. It is certainly clear, though, that a number of large and successful companies are actively engaged in social media efforts.

6. What advice would you give someone in communications as to how to approach their legal department regarding social media.
The company’s legal department should be involved from the beginning in the development of a social media strategy, not brought in at the end of the process for approval. Many legal departments already understand the importance of social media in today’s market, but it is important that they also understand the objectives their business groups have for the social media efforts. As with most projects, the earlier you involve the legal department in the process, the more they can do to assist in developing a strategy that is workable, meets the business objectives, and still minimizes the legal risks. Certainly, the legal department should be involved in developing any policies for identifying those matters that do not require legal review .

These comments from Burr & Forman LLP are general in nature and are not intended to be treated as legal advice regarding the topics discussed therein. No representation is made about the quality of legal services to be performed or the expertise of the lawyer performing services. Applicable state bar or attorney regulations may require these comments to be labeled as “Advertising.”

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