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Almost every business has its own Facebook page, Twitter profile, or Instagram account these days. If used well, these social media accounts can be valuable marketing and public relations tools. You can disseminate information about new products efficiently, address the complaints of disgruntled customers quickly, and improve brand loyalty by connecting with your audience regularly. However, a business can face a number of potential legal minefields in setting up and monitoring its social media.
Your business can be held responsible for anything posted by the business’s page or profile, whether that content constitutes copyright or trademark infringement, defamation, or implicates other laws. Your business may also be held responsible for postings by your employees and officers if those postings are related to your business. For example, if a restaurant’s manager defames a competitor by publishing provably untrue damaging statements about the competitor on Facebook, that competitor could potentially sue the restaurant.
However, your business generally isn’t liable for something a customer or client says on your page, as Section 230 of the Communications Decency Act protects online intermediaries from liability for information posted by third parties. For example, let’s say one of your customers writes a defamatory statement about another person or company on your page. You cannot be held liable for the posting, even if you have been told about the defamatory content and refuse to take it down. Only the person who actually posted the defamatory statement can be sued for defamation in this instance.
Keep in mind that social media sites are private entities who have the right to take down your page or your posts without your consent if you disobey their rules. Though many people cite the First Amendment in protesting such actions, this does not actually violate your right to free speech. The right to free speech only protects you against adverse action by the government for your speech, not a private company. It’s just not applicable to the situations we’ll be discussing in this article.
To avoid infringing on another person’s intellectual property, it’s safest for a company to post only content that it owns or has explicitly obtained permission to use. Using another person’s writing, photographs, or designs could expose your business to liability for copyright infringement.
Many common online practices, such as taking a photo, inserting a clever saying on it, and posting it as a “meme,” actually violate copyright law. Though it may seem unlikely that a copyright owner would attempt to go after every user who posted a meme using their property, a business with potentially large assets makes a more appealing target for a lawsuit than your average individual. In addition, the large statutory damages available under the Copyright Act to a copyright owner make the decision to post infringing content a risky one. This could also trigger bad publicity if an angry copyright owner protests publicly about your business’s infringement.
Some infringers incorrectly argue that the “fair use” doctrine protects their use of content online. For example, YouTube users often claim that under fair use, up to 30 seconds of copyrighted music can be used without committing infringement. However, fair use is actually a highly fact-specific inquiry whose applicability cannot be fully determined until litigated at trial. Pre-trial, it would be difficult to definitively say that any one use of copyrighted work qualifies as a “fair use.” The fair use inquiry undertaken in a trial could particularly work against a for-profit business, as one prong of the fair use defense looks to whether the use of the copyrighted work is non-commercial (commercial use weighs toward a finding of copyright infringement). With such a degree of uncertainty in the event of a lawsuit, it’s generally safer not to risk using another’s content without their permission at all.
If your business chooses to share another person’s content and wants to avoid copyright infringement, you could potentially post a link to the content online. However, use common sense and do not link to content which is obviously infringing; always attempt to find the original source and link to that instead.
Your business may refer to another company’s trademark on social media fairly in status updates or other types of content without committing trademark infringement. However, you can’t use another company’s trademark to create the false impression that the company endorses your business or in any other way sponsors or is affiliated with your business.
For example, your restaurant business could easily write on Twitter, “We love Swingline staplers and use them to staple all our menus together!” without committing trademark infringement. However, your restaurant would be committing trademark infringement if its profile tweeted, “Swingline Staplers is the official sponsor of our restaurant!” or used the Swingline trademark in such a way to make customers believe it was affiliated with your business.
We encourage you to safeguard your business by developing and implementing a social media strategy that keeps you safe. If you'd like our assistance, please reach out to Marc Lane at 312/800-372-1040 or at mlane@MarcJLane.com, in confidence. We’ll be delighted to help you.
Rachael M. Dickson is an Associate Attorney with The Law Offices of Marc J. Lane, a Professional Corporation. Rachael earned her JD from DePaul University College of Law, cum laude, along with a Certificate in Technology Law. A former journalist and editor, she brings a wealth of experience to the firm’s growing capacity to address its clients’ Intellectual Property objectives. Rachael volunteers with the Chicago Bar Association, the Women’s Bar Association of Illinois and Phi Alpha Delta as a board member of the Chicago Alumni Chapter.
The Law Offices of Marc J. Lane, A Professional Corporation
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