Social media can be a great way to engage with your customers in new and exciting ways, but social media also bring some novel legal issues for businesses. Keep the following points in mind when formulating your social media strategy.

(This is a guest post from our lovely friend, IP specialist lawyer Noirin McFadden from K&L Gates)

1. Check the terms of use

Some social media services have tailored terms of use for business users, together with advertising guidelines. Ensure you comply with these, or risk seeing your presence wiped from the service.
In particular, there are items in some services’ terms that you may not have contemplated, for example, Facebook passes liability to advertisers for any legal issues caused by their ads and includes a list of guidelines covering the advertising of different types of product, leaving it up to you to ensure that your ad is both legal and complies with Facebook’s requirements.

2. Competitions

Many social media services allow promotions to be run on their services, but as always, you should check the services’ terms to make sure and follow their rules about how the competition should be set up – Facebook requires competitions to be administered via an app and prohibits the use of many Facebook features for competitions.

Have a set of terms and conditions for your competition that comply with the Advertising Standards Authority code. Ensure that free prize draws do not amount to illegal lotteries. Online-only entry is currently not regarded as a “free” entry route to a draw, so you must leave a long enough period to allow people who do not have home internet access to get online. Another way to get round this is to introduce an element of skill, knowledge or judgement to your competition, for example, ask entrants to answer a question correctly in order to enter.

3. Reposting others’ material

Many social media services encourage users to copy photographs, articles etc to their own profile. If you do not have permission to do this, this could be copyright infringement. To ensure you’re in the clear, always make sure that you have the permission of the owner of the material you are posting.

If your material is posted on a social media service without your consent, contact the social media provider to request removal. Most services now have efficient take down notice procedures, and using them can prevent the unauthorised spread of your material.

4. Responsible tweeting

Social media in general, and Twitter in particular, has the potential for your posts to be read by millions of people. With great power comes great responsibility, so it is worth taking precautions to ensure that your posts do not pose any legal risks.

Beware of the risks of damaging others’ reputations. As we learned from the consequences of Sally Bercow’s tweets about Lord McAlpine, this is very easily done on social media.

5. Posting when part of a regulated industry

In most cases, there is no reason why regulated businesses should not use social media as a marketing tool. Use discretion in what you post – ensure posts are accurate, keep them general and don’t post confidential information – and include a disclaimer to say that your posts are either opinion or for information purposes only and do not constitute advice.


© 2013 K&L Gates LLP. All rights reserved.

Note: This is for information purposes only and does not contain or convey legal advice. The information herein should not be used or relied upon with regard to any particular facts or circumstances without first consulting a lawyer. This publication has been written from an English law perspective.

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