The new guide to minimizing legal risks in Social Media Marketing

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legal risks in Social Media Marketing

By Kerry Gorgone, {grow} Contributing Columnist

A couple of years back, I wrote a post called “the essential guide to minimizing legal risks in social media marketing.” Since then, some fundamental legal principles have stayed the same, but new issues have emerged as technology develops.

Here’s an update, so can continue to keep your marketing on the right side of the law.

Don’t use other people’s work (without permission).

This section of the original article holds up. If you want to use someone else’s creative work (picture, drawing, poem, article, etc.), get permission first.

Rather than copy/paste someone else’s article or upload their photo or video on your own site, link to their work from your site. You can introduce the topic or explain why you think the content will help your audience, then provide a link to the original source.

As an attorney, I often hear questions about “fair use,” so let me clarify that concept. “Fair Use” is a defense to a claim of copyright infringement. You don’t get to discuss “fair use” until you’ve been sued, and lawsuits are expensive.

Don’t worry about how much you might legally be able to get away with using, or under what circumstances using someone else’s work is legal. Just don’t do it. You’re running a business, so avoid litigation if at all possible. You don’t want to burn your hard earned revenue on legal fees!

This eliminates the need to get permission (you’re linking, not copying), and helps drive traffic to the creator’s website. You might still want to give the author a heads-up that you’re linking to their work, but this is merely a courtesy and a way to foster a professional connection with them.

Run contests instead of giveaways, and avoid illegal lotteries.

I’ve written in detail about contests and giveaways on this site and on KerryGorgone.com, but I’ll give you the short version here.

The law treats contests and giveaways differently.

Contests are games of skill. You select a winner based on a set of criteria you announce at the start. So long as you don’t change the rules once the contest is underway, you’re relatively unlikely to run into legal trouble.

Giveaways are games of chance: you choose a winner at random. You might draw numbers out of a hat (or using a service like Rafflecopter or Random.org). Whatever mechanism you use to generate a random winner, chance dictates who gets the prize.

There’s nothing inherently bad about giveaways. The tricky thing is how closely giveaways resemble lotteries.

In a lottery, winners are also selected at random, only entrants pay for a chance to win. Buy a ticket for a chance to win the prize. We all know how it works.

Lotteries can only be run by the state. You are not the state. If your giveaway requires any form of “payment,” it morphs into an illegal lottery.

“Payment” doesn’t have to be money. Asking people to comment on a blog post, share your photo, or even complete a survey for a chance to win might push you over the line from “giveaway” to “lottery.” The law on what qualifies as “pay to play” differs from state to state (and country to country, of course).

If at all possible, avoid this whole lottery mess by running contests instead. It’s much easier to select a winner based on the criteria you’ve specified than it is to figure out if what you’re asking people counts as “legal consideration” (e.g. pay to play) in whichever states or countries entrants might come from.

Specify “No Purchase Necessary” if you insist on running giveaways instead of contests. This means you will need an alternate way for people to enter if they don’t want to complete your survey, comment on your blog post, etc. This is the old “mail a 3×5 inch card to P.O. Box 555, Dover, Delaware for a chance to win.”

Also state “Void Where Prohibited.” This will help to protect you in the event your giveaway violates the law in certain states (or countries). If what you’re doing would be illegal in Utah, for instance, your giveaway will just not be legally valid or binding there.

Know each social network’s policy regarding contests and giveaways.

Very often, marketers want to run contests or giveaways using social media. Before you do, check the terms of use for the specific sites you want to use. Each social network has its own policy on contests and giveaways. I cover the details in this post: How to Keep Your Social Media Contest from Becoming a Trial.

Here’s a quick overview of the most popular social networks’ policies:

Twitter: Include a rule stating that anyone found to use multiple accounts to enter will be ineligible, and also discourage repeat posts by stating that multiple entries in a single day will not be considered.

Facebook: Don’t use personal timelines or friend connections to administer promotions (e.g. “share on your Timeline to enter” or “tag your friends in this post to enter”). Include an acknowledgement that the promotion is in no way endorsed by or associated with Facebook.

Pinterest: Don’t require people to pin your contest rules. Don’t run a giveaway where each pin (or board, like or follow) counts as an entry, or require a minimum number of pins.

Google+: No YouTube video contests (e.g. contests that require posting videos on YouTube or posting YouTube videos on Google+). Don’t offer a chance to win in exchange for “+1ing content, following a user, adding a user to circles, +mentioning a user (other than the contest creator or sponsor or an affiliate of the contest creator or sponsor), having other users enter the promotion, or voting in polls. “

Snapchat: Don’t encourage spam by asking participants to send Snaps to friends. Don’t use Snapchat’s name, trademarks or logo, and don’t otherwise violate their terms of use, community guidelines, or privacy policy.

InstagramDo include a complete release of Instagram by each entrant, and an acknowledgement that the promotion is in no way sponsored by or associated with Instagram. Don’t encourage people to inaccurately tag content in order to participate.

If you were thinking about running a contest on MySpace, you can’t. The site’s terms of use ban “commercial activities” like contests and sweepstakes. https://myspace.com/pages/terms.

Building an audience takes time and money: don’t jeopardize your investment by violating a site’s terms of use.

Experiment with Periscope and Meerkat, but stream responsibly.

I’ve created a legal checklist for marketers who want to use live streaming video for content marketing and promotion.

legal risks in Social Media Marketing

To boil it down to two words: stream responsibly.

Think about where you are, what viewers can see and hear, and whether there’s anything in frame that shouldn’t be. Avoid streaming other people’s copyrighted works or private conversations.

Finally, be aware that people viewing on a computer or TV might see much more detail than what you see on the small screen while streaming.

Disclose sponsored relationships, and require influencers to do the same.

Influence marketing has really taken off in the past several years. As organic reach for brands on social networks has plummeted, they’ve reached out to individual influencers in order to reach their online audiences.

Relationships of this type can benefit both brands and influencers, but everyone involved should know the law regarding disclosure.

I’ve written in detail about the Federal Trade Commission’s requirements on disclosure on my website, but here’s the Reader’s Digest version.

Influencers should disclose the sponsored relationship in very piece of content (tweet, blog post, video, etc.). In each post, every influencer should expressly state whether he or she received anything of value. Everything from a sample product to an all expenses paid European vacation should be mentioned.

Twitter doesn’t give you much room to disclose in a single tweet, but the FTC has made it clear that you have to make it work. If you can’t fit disclosure in the same tweet as the link to your content, don’t use Twitter.

Hashtags like #ad can help, but aren’t strictly necessary. So long as the average person would understand you got something for free or got paid to post, that disclosure is sufficient.

Typically, agencies will specify “CLIENT” or bloggers will say “SPONSORED” or “AD.” The only tag the FTC has explicitly rejected is “SPON.” In the FTC’s view, most people wouldn’t know what that means.

There’s more, of course. With law, there’s always more to know, but between the original guide and this update, you’re well equipped to minimize hassle. And as Peter said in the movie Office Space, “my only real motivation is not to be hassled.”

Here’s to hassle-free marketing!

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Instructional Design Manager, Enterprise Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Google+ andTwitter.

Illustration courtesy of toothpaste for dinner

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