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Incorporating the use of social media and online networking
sites into an association's larger communication, membership,
or marketing strategies raises a number of potential legal risks
and liability issues for the association. The following is a
non-exhaustive list of legal issues to consider in connection with
using social networking sites to create, manage, and/or sponsor
content.
1. It's more public than you think.
An association should always be careful about what it posts and
assume that greater (not less) publication or disclosure is
possible.
2. Avoid use of material obtained without permission
and provide proper attribution for content taken from other
sources. Given the ease with which content and
material can be obtained or posted online, even within social
networking sites, avoiding copyright infringement will always
remain a concern for associations.
3. Be careful with allowing others to post
content. When managing an online social network that
enables the posting of content by a third party (e.g., a
member), such content functionality can give rise to liability for
copyright infringement, torts, or defamation. Avoid
encouragement of unauthorized use or copying of third-party
content, and where possible, seek the consent of the author, owner,
or subject before reproduction or use.
4. Know your identity and role. Monitor
your interactions with other users and be sure you can verify your
association's own posted material from messages or material
from other sources.
5. Pattern behavior to take advantage of potential
immunity. The federal Digital Millennium Copyright
Act of 1998 lays out certain safe harbors for "Internet
service providers" that could provide protection from
copyright infringement claims, and the federal Communications
Decency Act of 1996 offers safe harbor protection for providers or
users of interactive computer services from civil liability for
defamation, invasion of privacy, negligence, and trespass
claims.
6. Consider hyperlinks to third-party
sites. Although mere linking may not suffice to find
copyright or trademark liability, an association should never
frame, deep link to, or incorporate any third-party content without
permission when it links to other sites or pages.
7. Don't misuse trademarks.
Third-party trademarks should be used by an association in its
online social media with permission when possible and with extra
caution when use is in a commercial context.
8. Be careful with sweepstakes. An
association should always seek legal counsel before implementing an
online sweepstakes or contest through an online social
network. There are numerous state laws and regulations that
govern online contests, lotteries and sweepstakes.
9. Watch what you say when you market.
An association should be careful with any practice that is really
advertising in disguise. There are federal and state rules
and guidelines to be mindful of in this area.
10. Don't ignore the rights of privacy or
publicity. Privacy considerations, particularly with
respect to children under the age of 13, still apply to social
networking sites.
11. Be careful when sending unsolicited
communications. Even inside a social networking
site, email and other forms of viral campaigns, particularly for
commercial messages, can remain subject to laws governing
unsolicited e-mail such as the federal CAN-SPAM Act of 2003.
12. Monitor blogs and other instant communication
forums. Govern with clear policies regarding
appropriate content and use such policies to help manage the
association's responsibility and potential liability. A
clear take-down policy also should exist.
14. Guard against antitrust risks.
Social networking sites and related media can make it easy for
members to let their guard down and share information that could
lead to a violation of the antitrust laws. Remind members
that they may not communicate via association-sponsored social
networking to make an anti-competitive agreement or even to share
competitively sensitive information.
15. Don't ignore employer/employee
considerations. An association should define its
role, as well as the expectations it has for its employees'
behavior when they are using social networking sites for
association business purposes.
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.
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