Protect Yourself: Social Media and Legal Liability

Business blogging and other forms of business-related social media seem to be innocent enough, but the content you post could get you into serious legal trouble. Chicago attorney and media law expert Damon Dunn, of Funkhouser Vegosen Liebman & Dunn Ltd., cautions any company that publishes content on the internet to vet that content, particularly any photographs, as carefully as any media company should do.

"Whether you post it on a billboard, company website, or tweet, liability is triggered by false or deceptive statements of fact. In the commercial speech arena, courts are more willing to impose liability for speech that creates a misleading impression even if the words were literally true." ~ Damon Dunn, Attorney and Media Law Expert

To protect yourself and your business from legal liability related to the content posted on your website, blog or via other online social media outlets, Dunn recommends the following:

• Watch for unfair juxtapositions, especially photos and text, or omission of explanatory facts.

• Beware of misusing your competitor's copyrights and trademarks.

• Don't be impulsive. Media companies engage in fact checking and pre-publication review and so should you.

• Beparticularly careful to avoid disclosing confidential information.Preventing the spread of confidential information is very difficultonce it reaches the web and social media, particularly if it goesviral due to public interest. In addition, disclosure of confidentialinformation on social media sites could give rise to a possible waiverof attorney-client and work product privileges.

• Establishclear media policy guidelines and distribute them to all managers,employees, contractors, and agents. Employers are generally responsiblefor independent actions taken by employees if these actions are deemedto be within the scope of employment, particularly when those actions areintended to benefit the employer. This rule can extend to independentcontractors and agents as well.

• Apprise managers ofthe risks to themselves and to employees and provide support sothey know when and where to turn within the company for guidance.

• Carefullyavoid disclosing any information that could be used against you or yourbusiness in a court of law. Information posted on social media siteshas been used to impeach witnesses during litigation and attack theircharacter.

• Establish compliance with the new Federal Trade Commission rulesand regulations governing business-related content on the web. (Formore information, see my previous post, "Tough New FTC Regs for Bloggers.")Be particularly careful of bogus endorsements and ratings. Failing todisclose material connections with bloggers or reviewers (evenproviding free samples), could land you on the wrong side of the FTCrules. You should also monitor product reviews made by bloggers fortruthfulness.

• Get liability insurance to protectyour business against any adverse claims or rip-off reports. Coveragemay be provided under Errors and Omissions, CommercialGeneral Liability, property damage or business interruptionclauses, or cyber-liability, data privacy and security liabilityclauses. The key is to be aware of the unique threats posed by socialmedia and make sure the terms of the policy provide sufficient coveragefor all threats--carefully investigate any exclusions.

• Carefullymonitor your social media venues. Whether you have a company orbusiness blog, a Facebook fan page, or a discussion forum, you may beresponsible for content posted by others. Federal "safe harbor"protection is designed to immunize Internet Service Providersfrom legal liability related to comments posted by third parties.However, even if you qualify as an ISP (which isn't likely), lawsgoverning defamation, privacy, consumer deception, unfair competition,copyrights and trademarks all apply to posts attributable to you.

Aslaws governing social media evolve, the web is becoming less and lesslike the Wild West. There's a new sheriff in town (the FTC that is) with a whole new setof laws. To keep yourself and your business out of the courtroom, brushup on the news rules and regulations, remain vigilant and actresponsibly.