Social Media Regulations: Master The Old Rules, Prepare for the New

It’s expected that 2010 will be the year social media really comes of age as a razor-sharp PR and marketing tool. But with that comes talk of 2010 being the year of potential social media litigation, especially for organizations new to the game.

Indeed, while governmental regulations are usually far behind technological advances, 2009 saw revised Federal Trade Commission guidelines on testimonials and endorsements in blogs and on social networking sites. In addition, industry-specific edicts for message-sensitive sectors such as healthcare and finance could be close at hand.

Yet social media remains largely under the umbrella of old regulations—those that have covered trademark, copyright and privacy laws within the traditional broadcast industry for years. That’s why experts surveyed by PR News recommend getting familiar with those tried-and-tested laws, because they expect little else to change this year. What follows is what those social media law experts feel PR executives should be aware of in terms of social media and the law.

FTC GUIDELINES

Last updated in 1980, the FTC’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” addresses endorsements by consumers, experts, organizations and celebrities, as well as the disclosure of important connections between advertisers and endorsers. According to the FTC, the revised guides add new examples to illustrate the long-standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers—connections that consumers would not expect—must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement.

Glenn Manashin, a partner with the international law firm of Duane Morris LLP, says the FTC guides are just that—“guides,” not binding law. But as long as the possibility of stiff punishment and bad press is there, Manashin says “it’s just a good business practice to comply with the guidelines.” (For advice on addressing the FTC guides, see the sidebar.)

Don Stacks, professor and director of the University of Miami School of Communication Program in Advertising and Public Relations, believes bloggers have the greatest potential for getting PR practitioners in legal hot water. “Bloggers tend to make claims backed by the audience predisposition to believe it, which is the lowest form of evidence,” says Stacks.

BACK TO THE FUTURE

FTC guidelines aside, many of the same laws that apply to print, TV or radio apply to cyberspace as well, and probably will for awhile, says Manashin. So beware of copyright and trademark issues that these age-old laws apply to.

▶ Copyrights: Don’t even think about the murky “fair use” provision—using a copyright holder’s material in a blog or on Facebook without permission could land you in court. On the flip side, according to Manashin, your Twitter posts aren’t copyrightable—yet. “The point is that social media sites cannot create rights that otherwise do not exist in the law,” he says.

▶ Trademarks: While copyrightable contents must be original, an expression (not a fact or opinion) and not merely an idea, a trademark is used to protect a word, symbol, device or name that is used for the purpose of trading goods. Be sure your social media efforts aren’t infringing on someone else’s trademark through something pulled out of cyberspace, because you will be liable, says Manashin.

▶ Privacy: This may be one area that will see some legal changes in the near future, says Stacks, but more in terms of social media platforms and their users. “The relationship between providers of tools and users is pretty significant,” he says, citing Facebook’s recent changes on user privacy settings, which set off a firestorm of criticism.

PUSHING THE LEGAL ENVELOPE

Stacks believes that eventually the social media phenomenon will spark significant regulation.

Take Twitter, for example. “I view Twitter as a 21st century adaptation of the 19th century telegraph,” says Stacks. “You had to know Morse code to understand it, and Twitter has its own language that we need to study further—and that will spark legal issues.”

Manashin doesn’t see many social media-induced regulations in store for the near future, “but the field is developing and changing rapidly. Who would have thought that CNN would be reading Twitter posts on the air?” PRN

CONTACT:

Don Stacks, [email protected]; Glenn Manashin, [email protected].