Allowing donors, supporters, members, or other interested third
parties to communicate with and about a nonprofit through its
social media networks can facilitate and improve a nonprofit's
communication and marketing efforts, aid in fundraising and
membership development, and otherwise help further the
nonprofit's mission. Nonprofits may therefore allow and even
encourage third parties to post messages or display content to the
nonprofit's controlled social media pages. However, allowance
of user-generated content on social media pages controlled or
operated by a nonprofit can raise a number of potential legal risks
and liability issues, which are due in large part to the fact that
the nonprofit may not have complete control over what a third party
posts or displays. Below is a non-exhaustive list of legal steps to
consider that will help minimize the likelihood that legal
liability arises from user-generated content posted to a
nonprofit's social media pages.
Know the Role: Establish and know when a
communication or posting is published or edited on behalf of the
nonprofit, and when a posting or other content is provided by a
third party (and thus, outside of the nonprofit's
control).
Monitoring: Although controls should be
established to ensure an editorial role only when desired, it is
still important to monitor all social media pages controlled or
operated by the nonprofit for problematic postings in order to be
in a position to take timely and responsive action.
Terms of Use: Establish clear policies regarding
appropriate content, disclaiming responsibility for user-generated
content, providing for removal of posts containing prohibited
content, and precluding posts containing prohibited content.
Take-Down Action: Prohibit and remove posts
containing content that is abusive, offensive, intimidating,
humiliating, obscene, profane, discriminatory, irrelevant to the
nonprofit's work, or otherwise inappropriate.
Advertising: Be mindful of posts containing
product and service advertisements because of federal and state
rules and guidelines governing advertising and potentially
requiring additional compliance obligations.
Immunity for Copyright Infringement: Given the
ease with which material can be obtained and posted online,
avoiding copyright infringement claims based on the use, display,
reproduction, or distribution of content posted on social media
pages will always be an important concern for nonprofits. The
federal Digital Millennium Copyright Act of 1998 (the "
DMCA") lays out certain safe harbors for Internet service
providers that could provide protection for nonprofits from such
claims in this area. Every nonprofit should become familiar with
the safe harbor requirements and consider taking the steps
necessary to obtain statutory immunity.
Trademark Infringement: Unlike under the DMCA,
there are no statutory safe harbors for trademark infringement
claims. The safest approach is for nonprofits to prohibit posts
containing third-party trademarks absent consent from the trademark
owner, and to demonstrate a good-faith effort to prevent and manage
trademark infringement by implementing the same take-down policies
required to obtain immunity under the DMCA.
Content Attribution: Ensure that the nonprofit
can verify and distinguish its own posted material from messages or
materials posted by users. Consider requiring use of a ",
®, and/or © symbol in connection with prominent placements
of the nonprofit's intellectual property on social media pages,
and otherwise provide notices and conditions for any use or display
of the nonprofit's intellectual property by third
parties.
Rights of Privacy and Publicity: Nonprofits
should remember that privacy laws, including laws designed to
protect medical records, financial information, and the privacy of
children under the age of 13, still apply to posts made on social
media sites. Moreover, the exclusive right to exploit one's
likeness for commercial gain similarly applies to social media
environments. Restrictions should be stated to control the use or
disclosure of such protected data and images without
permission.
Defamation: Editing, displaying, or distributing
posts containing defamatory statements about a third party could
lead to civil liability. The federal
Communications Decency Act of 1996 offers providers of
interactive computer services safe harbor protection from civil
liability for defamation (and certain other) claims where the
provider is not the content provider. As with the DMCA, nonprofits
should be well versed in the safe harbor requirements and pattern
their behavior to qualify for this protection when possible.
Guard against Antitrust Risks: Social networking
sites and related media can make it easy for members of trade and
professional associations to let their guard down and share
information or engage in discussions that could lead to violations
of federal and state antitrust laws. Remind members that they may
not communicate via nonprofit-sponsored social networking to make
anticompetitive agreements such as agreeing to restrict production
or services, to share competitively sensitive information such as
(but not limited to) pricing information, to engage in group
boycotts, or to engage in other anticompetitive conduct.
Employer-Employee Issues: Remember that content
generated by employees (even without the approval of management)
can expose the nonprofit employer to liability. Consistent with the
recommendation for knowing a nonprofit's role, consider
adopting a policy or guidelines for employees governing their use
– both "on" and "off-the-clock" –
of social media sites; this has now become the norm with
nonprofits.
Retain Records: Nonprofits using social media
should retain records related to such use for a reasonable period
of time in the event the records are needed in connection with a
federal or state agency investigation, lawsuit or arbitration, or
other legal proceeding.
Posts Are More Public than You Think: As always,
be careful about which posts are permitted to remain on social
media pages and always assume that greater (not less) publication
or disclosure is possible.
Nonprofits should consider carefully the above issues and guidance
and then develop a social media strategy that is properly tailored
to their planned goals, activities and concerns.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.