Social Media Lawyers Protecting Your Online Business Reputation

There are some unique legal concerns with using social media to promote and grow your business. If you have employees, confidentiality and privacy concerns pose a potential avenue of liability. Promoting your business via statements and endorsements by employees and affiliates through social media presents another significant concern. Each business should understand these specific areas of liability if it plans on operating a social media fan page, has employees, affiliates or any other sponsored endorsers.

“Social media” is essentially a broad term that covers all Internet interactive forums where users generate the content and share information. Social networking sites (i.e. Facebook and Twitter), blogs, streaming, photo and video sharing sites, podcasts (i.e. audio and video files), wikis (i.e. websites that allow people to add content to or edit the information, such as “Wikipedia”) and other online forums are all considered as social media. Of course, most people think of Facebook or Twitter or other social networking forums as social media. But, in terms of your business, any forum or platform you operate or advertise upon that allows user generated content can cause the same laundry list of problems.


Custom Social Media Policies 

Clients that have employees or use any type of third party marketers or affiliates need a written social media policy. Social Media policies serve the following objectives: 1) to protect the image and reputation of your business from the acts of your employees; 2) protect confidential information from being disclosed; and 3) protect your business from advertising liability stemming from claims made by your employees, affiliates, resellers or other sponsored endorsers. The 2009 Revised FTC Guidelines now make it clear that Internet businesses will be liable for the deceptive claims and statements made by their third party “sponsored endorsers.”

The FTC has presented a serious threat to the success of the current online marketing model, which relies heavily on third party marketing. However, implementing a sound and comprehensive social media policy and then monitoring your social media forums can greatly reduce exposure to liability. Mr. Nicolosi has helped his clients implement social media policies covering virtually all relevant forms of social media. Click here to learn more about what your business social media policy should say.


Social Media Sponsored Endorsers Liability 

If your business relies on affiliates, marketers, third-party blogs or other Internet forums to review and endorse/promote your products or services, you can incur liability for their deceptive advertising practices! The FTC revised guidelines make it clear that both the sponsor (seller) and any sponsored endorser, including any affiliate marketers, bloggers, distributors, paid posters, resellers, podcasters, video producers, etc. will each be liable for any deceptive endorsements or general claims made in promoting products or services. This applies to deceptive claims made on social media!

The FTC wants your business to have reasonable training and monitoring programs in place in order to not be held liable for claims by rouge affiliates. At a minimum, your business should have a program in place to monitor what any affiliates or product reviewers are stating about your products.

An experienced social media lawyer can help your business avoid social media liability!


Defamation on Facebook, Twitter and Other Social Media 

Can I sue Facebook? We get that question often from business owners. Many individuals and businesses are defamed on social media such as Facebook and Twitter. Usually, the first instinct by the defamed is to question whether the social media involved can be held liable. The Communications Decency Act will generally shield interactive websites including social media sites for liability for statements or content posted by its users. However, most social media sites have terms of use that restricts posting any unlawful content or content that infringes upon the rights of others. But, unlike sending a host provider a DMCA take-down notice, social media websites are not compelled to take down any defamatory content.

However, this does not mean that the individuals posting any defamatory content are not liable for their illegal actions. Depending upon the defamatory content, you or your business may have to show actual economic harm (damages) stemming from any false statements damaging your online reputation.

Section 230 of The Communications Decency Act of 1996 protects blog owners and other interactive website operators. It states that it “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.” The law protects Internet “intermediaries” who merely “provide or republish speech by others.” However, this immunity is not absolute as a website cannot alter the meaning of the content published on the site and still be immune from liability.

Nothing compels Facebook or any other social media site to take down a page or profile by law. These sites are clearly exempt for defamatory content under section 230 of this law. (Posting defamatory content isn’t against Facebook’s terms of service unless it is accompanied by harassment or threats of violence).


What can your business do to protect its online business reputation?

Even though your business cannot sue a blog, social media platform provider, etc. for false remarks made about you or your business, you can still sue whoever posted the defamatory remarks. If your business has been defamed online, you can and should address it. Contact us so that we may assist your business determine if any negative statements made online are actionable as defamation.

You may be considering adding an anti-disparagement provision to your business customer contracts. While defamation is illegal, negative remarks that are not false and are merely opinions are not illegal. Your business will not be able to prevent a customer or anyone else from making negative remarks about your business online. But, if that person has previously agreed to a non-disparagement provision, that conduct then becomes actionable by your business.

But, are non-disparagement clauses restricting negative customer comments online enforceable? As with any breach of contract claim, your business would have to prove a breach and then damages. A clause that specifically an unequivocally defines which actions are considered to be a breach is imperative. The negative statements must clearly violate the non-disparagement clause. Even if there is no doubt about whether a breach occurred, proving damages in a non-disparagement case (and in defamation cases) is difficult. Although a liquidated damages provision can be used to side-step this concern if drafted properly. These clauses may not be enforceable as against public policy for being unconscionable or unfair provisions in a consumer agreement. More importantly, the drawbacks of using such a clause in your site terms of use or customer agreements can be severe. This practice may leave your potential customers with an uneasy feeling and may result in generating the unwanted negative publicity that your business is trying to avoid in the first place!

There are other avenues to pursue in defending your online business reputation such as false light claims and similar common law claims. Get in touch with us to understand how your business can take steps now to manage its online business reputation or how to handle negative online reviews or statements.


Should your business erase negative comments from our social media fan pages?

No, unless the content contains abusive, obscene or threatening content. Otherwise, your business should simply respond to any negative posts on its own fan pages in a professional and courteous manner and attempt to defuse the situation. Erasing negative feedback or comments can create a firestorm of bad publicity and, in my experience, only ends up hurting your business in the long-run.