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The Risks of Social Media: Legal Limits

social media

As we all know by now, social media can be both a great marketing and networking tool, as well as a good excuse for employment termination if mishandled — or worse, a lawsuit.

For instance, did you know that the Federal Trade Commission is watching those social media sites that promote a product or service? In the FTC’s December 2009 guidelines, it states that, among other things, those promoting a product/service on the internet (via Facebook, Twitter or any other form of social media) must incorporate a disclosure page or statement telling of the financial agreement between those giving testimonials about the product/service and the company itself.

Under the Guidelines, endorsements must reflect the genuine beliefs or opinions of the endorser and cannot otherwise be deceptive. In addition, the endorser must be a bona fide user of anything given of value to the endorser. For example, a blogger who reviews a product given to her for that purpose should disclose that it was provided by the manufacturer, and not purchased. Most do not follow this simple rule.

Understanding the legal implications of what is presented on your social media site can be confusing. To break it all down for us, Law.com issued a nice online article this morning, entitled “Minimizing the Legal Risks of Using Online Social Networks.” In our continuing coverage of the risks of social media, I present you with a breakdown of the piece:

  • Copyright: If you are using text, audio, video or images on your site that you did not create yourself, you may be violating an individual’s or organization’s copyright. However, if your posting qualifies as “fair use,” then use of the content will most likely not be questioned. Common situations of fair use include criticism, comment, news reporting and education.
  • Trademark: As the article states, “If you are using another’s trademark, you may be liable for infringement, where the owner can establish that your use of its mark or a mark similar to it will likely cause consumer confusion as to the source of the material.” And if it is proven that your conduct diluted the strength of the owner’s trademark, there may be potential for further liability.
  • Defamation: This is a huge topic in the realm of social media and the risks involved. In general terms, a defamatory statement is “a false and disparaging statement about another which causes injury to reputation (or in some cases causes emotional distress).” Along with individuals, businesses and products can also be defamed, sometimes causing reputation and financial damage (cue lawsuit).
  • Confidentiality: This section is geared towards those whose profession involves confidentiality agreements (lawyers, doctors, advisers, etc.). If there is proof of a breach of this agreement, possible sanctions “may include termination of employment, loss of professional license, potential significant civil liability (such as in the context of trade secret dissemination), or even criminal liability.”

These are just a few of the potential legal risks of social media. And as society continues to move to even more of an online presence (for both personal and business aspects), we will continue to learn the possible implications of a web 2.0 world.

The Risks of Social Media: Pseudonyms on the Internet

One of the coolest things about working from the press room at the RIMS Annual Conference is the ample amount of press releases available to journalists and other media professionals.

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Various companies in the risk and insurance industry are eager to spread the news of their new surveys, studies or products, and it shows — I’m currently looking at tables filled with Chubb, FM Global, AIR Worldwide, etc.

One study from Chubb that caught my eye stated that many don’t use their real name on the internet.

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In fact, the study says only 51% always use their real name.

I questioned why this would be of any concern and I was met with a great quote.

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“Twitter, Facebook and Foursquare have created new social media risks and an environment where many people don’t know who they are talking to online,” said Kenneth Goldstein, worldwide media liability manager at Chubb. “They don’t realize who can see their location, creating many exposures for individuals and companies.”

Some interesting stats from the study:

  • 66% of respondents said they would not use mobile technology that shows people on social networking sites where they are located
  • 20% of respondents said they have shared a negative product or service experience with others on Facebook, YouTube or other social networking sites
  • 64% of respondents said the company had no policy for talking about the company on social networking sites

This is just another aspect of social media risks that we continue to write about (check out past posts on the topic). And of course, check back later for more posts from RIMS 2010.

The Risks of Social Media: Self-Inflicted Reputation Damage

reputation risk the world is watching

When we talk about social media and reputation damage, there are two basic types: (1) Damage that is self-inflicted, and (2) damage that comes externally from others. We will discuss type two later, but since that is inherently more difficult to control, let’s start with the type that companies can more easily manage.

There are are almost limitless way that companies can look bad publicly. Just recently, we have seen Toyota hurt its brand by failing to properly correct safety issues in its vehicles and the Massey mining company expose itself to scrutiny for prioritizing its need to “run coal” over the safety of its workers. Wal-Mart has infamously garnered consistent backlash for its business practices, ranging from discriminating against women/minorities and crushing local businesses to union-breaking and failing to provide workers with health care.

But the digital world offers many new ways for companies to hurt their own brands. And Wal-Mart knows about these, too.

The retail giant famously invited scorn in 2006 by partnering with two RV campers turned bloggers who drove around the country, spending their nights in Wal-Mart parking lots and detailing interactions with — what seemed to many — overly positive employees with nothing but nice things to say about the company. The trouble that ensued was not due to the fact that Wal-Mart had launched a PR campaign to help counteract some of its negative publicity. The fallout resulted because the bloggers, who were presented as regular Americans with homespun, folksy tales of how great Wal-Mart is, were not as independent as it seemed. They were, at least to some degree, on the Wal-Mart payroll. (The exact relationship between the company and the campers is detailed here and the plan did start out as an organic idea that was later co-opted and supported, financially at times, by the retailer. Ultimately, however, it was — like most things in the online world — the perception of impropriety that was the lasting memory, not the actual facts.)

The problem was transparency. Readers — aka, customers and critics — felt duped by the insincerity. They believed that Wal-Mart had set the whole thing up as a ruse. And there is perhaps nothing that those who can do damage to a company on the internet loathe more than being lied to.

So while this incident obviously didn’t do irreparable harm to one of the biggest corporations in the world, it did leave a bad taste in the mouths of many consumers. It was a good opportunity turned bad, simply because there was a lack of disclosure.

This is lesson one about using social media: Be honest.

You don’t have to always be perfect and you don’t have to always tell the world everything about your operations in social media, but you cannot lie. Inevitably, dishonesty comes out, and a firestorm of “WAL-MAAART SUCKS!!!!11!1!!!” backlash is the result.

The second lesson, which I will tell you before we even get to the example to ease your suspense, is: Be respectful.

The online culture that has developed on blogs, internet forums and social networks (all of which fall into the realm of social media and user-generated content, which are really one in the same) is not particularly polite. Anonymity allows people to write things they would likely never say in real life, and hostility often results.

But if you are a professional brand operating in this space, you must be careful to avoid mudslinging. When irrational, cruel voices enter the fray, you must take the high ground. You have to be better than that.

One employee at Ryanair did not heed such advice.

After a freelance developer named Jason wrote on his blog about a flaw in the airline’s system that allowed him to book a free flight, one of Ryanair’s employees reacted … let’s just say … inappropriately.

This was his/her response:

“you’re an idiot and a liar!! fact is! you’ve opened one session then another and requested a page meant for a different session, you are so stupid you dont even know how you did it! you dont get a free flight, there is no dynamic data to render which is prob why you got 0.00. what self respecting developer uses a crappy CMS such as word press anyway AND puts they’re mobile ph number online, i suppose even a prank call is better than nothing on a lonely sat evening!!”

After some follow up discussion from Jason, he/she added this:

“Website is not perfect, Life is not perfect… if you would work in your pathetic life on a such big project in a such busy environment with so little resources, you would know that the most important is to have usual user behavior scenarios working rather than spending time on improbable and harmless things.”

This was the wrong way to address the issue.

Companies always have to weigh whether or not to respond to online criticism. Some choose to do so aggressively while others choose to mostly ignore it.

Dell famously was able to reverse some of the reputational harm done to it by the many critics who had detailed their experiences with “Dell Hell” customer service online. According to Jeff Jarvis, one of the company’s most high-profile critics, Dell reached out and learned about how to improve from those with complaints.

After some prodding by Jarvis, who was a — if not the — lead instigator of this burgeoning anti-Dell sentiment, to “join the conversation your customers are having without you,” Dell began to address the issue. The company turned its customer service around. It contacted people who had had negative experiences. It launched its own corporate blog to publicly discuss its flaws. And, according to the company’s leading critic, it worked.

“Dell transformed itself from worst to first in the era of customer control,” wrote Jarvis. “Dell had been the poster child for what you should not do. Then it became the model of what you should do.”

Just because it worked for Dell doesn’t mean it will work in all cases. When dealing with the “loud minority” who perhaps have irrational anger towards your brand, putting your head in the sand and pretending you never saw it can be the proper response. The last thing you want to do is give credence to an outrageous claim by acknowledging it.

But if the criticism is valid — and coming from and at least marginally civil source — and you do decide to interact in social media in an attempt to improve how people view your company, make sure to do it with respect. There is no point in making things worse.

An article from WebWorkerDaily on what things do and do not work on company FaceBook pages provides some good perspective on both of these lessons:

Let’s face it. Social media is not about you being in control anymore. The customer is in the driver’s seat. You are along for the ride, but fortunately can give some directions or guidance in appropriate ways. Sure you can delete things from your Facebook Page, but in the world of social media, that is an attack on transparency (not to mention freedom of expression and spirit of online community). Someone says something negative about you on your Page? Look at it as an opportunity to right a wrong or to give your side of the story with unrestrained candor.

Appropriate candor should be the takeaway. Talk to your customers and talk to them like you would any normal person in a normal conversation. Be honest and be respectful and you should be OK. How you go about actually improving your reputation through social media is a whole different can of worms, but as long as you stick to these principles, you should at least not inflict self-damage.

Training your employees who will be the online gatekeepers of your brand is the key to success in this realm, and Ecoconsultancy tells us why in its post on the 10 Common Social Media Mistakes.

Social media may look easy, but it really isn’t. How your employees behave can have a big impact on your company’s social media reputation. For companies that are actively involved with social media, setting expectations and creating policies for employees is the best way to ensure that they help your reputation, not hurt it.

Education and guidelines/policies are necessary before you delve into social media. You wouldn’t hire a marketing exec to shape the face of your brand who didn’t know anything about marketing. And you shouldn’t allow anyone unfamiliar with the pitfalls of social media to speak for your brand online either.

We will talk more about social media policies in the future.

(And if you missed the introductory post of our ongoing Risks of Social Media Series, you can read it here.)

The Risks of Social Media

social media twitter

For our October 2009 issue of Risk Management magazine, I wrote a cover story on the risks of social media. We called it “The New Wild West” given the lawless (or at least “precedent-less”) nature that today’s online world shares with the days of Jesse James and Billy the Kid.

Our main goal was to introduce the topic of social media — and all of its many risks — to an audience that may not be as familiar with this emerging threat as it should be. Companies and risk managers are always racing to keep up with the latest tech risks, but preventing viruses and securing databases is generally a responsibility for IT. Well, even though social media exists in the digital domain, many of its risks are old-world issues. There are real compliance, legal, reputational, privacy and intellectual property concerns in addition to all the IT exposures.

In the weeks and months to come, we will be taking an in-depth look at each of these issues individually in our Risks of Social Media post series, but, to kick things off, I just want to punctuate the key takeaway from what I wrote in October.

“Employers are going to be held liable for the behavior of their employees,” said Simonson. “Is harassment going on in social media? Breach of proprietary information? Employees can easily leak trade secrets.”

These things are not new risks, per se, but it is now much easier for one foolish error by an employee to become a significant issue. Once an employee hits the “reply” or “post” button, the information is now public and, because it is digital, it is essentially engraved in stone on a server somewhere.

“Users are becoming their own unedited publishers,” said Simonson. “I don’t think the risks are all that different from the past. There’s just a much greater chance for it. In the past, controlling all published material was easy.”

As always, what your company does can hurt you. And that includes all the individual actions of all your employees. Now, many of those actions just happen to occur outside of the physical world — and they occur instanteously and with less forethought than ever before, which makes them inherently more difficult to manage.

But you can do it. First, you just need to understand exactly what these risks are.

In addition to reading my aforementioned article, I encourage you to watch the video below from a panel discussion I recently participated in. (I’m the bald guy with the beard.) We gave a 90-minute presentation for an event hosted by the International Association of Business Communicators (IABC), and the clip is a 10-minute “best of” video that offers some nice insights into (1) monetizing opportunities, (2) restricting employee access to social networking sites, (3) who should “own” social media, (4) the legal risks of social media, and (5) “going viral.”

You can listen to the 30-minute, audio version at the IABC Philadelphia website as well.

And, most importantly, be sure to check back here regularly to read more from our Risks of Social Media series. (In the meantime, you can also see some of our previous social media coverage here.)

For more on social media generally and how it is transforming how we interact with one another and distribute information, watch this video.