This caricature from attorney Shawn E. Tuma’s plain English guide to social media law is funny — but the consequences of losing a lawsuit because of a careless social media post are anything BUT funny.
First, the disclaimer. I’m not a lawyer. I figure that I’ve paid for a pretty good legal education, however, having worked with many of the best attorneys in this arena and written far more than my fair share of articles on this subject.One of the attorneys who falls into the category of “one of the best in this arena” is Shawn E. Tuma, a partner in the Dallas firm of Britton Tuma. Shawn is a sought-after speaker at events for lawyers, business owners, and marketing types, and he recently gave one of the best overviews of the legal do’s and don’ts of social media that I’ve read. You can download the complete presentation here.What I like about Shawn’s presentation is that he covers the whole spectrum of potential legal pitfalls surrounding social media — but he does it from the standpoint of minimizing them, without scaring people or suggesting rules that block employees, marketers, or individuals from using the full potential of social media.
Better yet, he wrote his guide in plain English, not legalese. Perhaps it’s that Shawn himself is totally immersed in social media — he’s the person who first introduced me to Pinterest, for instance, back when it was a tiny beta — that makes his guidelines so helpful. But I think it’s more that Shawn understands the fact that the train has already left the station. It’s far, far too late to tell people that they can’t use social media. It’s time to tell them how to do it without causing legal headaches for themselves or their employers.
The most important thing about this guide is that it makes sense. This is a lawyer who is well aware that many of the potential pitfalls haven’t yet been litigated. That means that no court has ruled one way or another on the issue. And he offers the best advice I’ve read yet on dealing with the unknowns in social media law:
- Social media policies are mandatory, even for tiny start-up companies. They’re the first line of defense. If you don’t have one, get one today. Here’s a link to Eric Schwartzman’s excellent template for a social media policy — recently updated to comply with regulatory changes.
- Buy insurance to protect yourself and your company from computer-related issues. No, your existing policies won’t cover you. Yes, you really do need a whole new class of insurance. See Shawn’s presentation for all the reasons why.
- Don’t treat social media (or anything on line) differently than you’d treat similar situations in the “real world”. If you wouldn’t say or do it in a meeting with your CEO — your best customer — the pastor of your church — at a conference attended by your entire industry — don’t say or do it online. (Or as Steve Selby, the insurance industry’s compliance guru puts it, “Don’t lie, don’t cheat, don’t steal, don’t commit any illegal act online.”)
Little-Known Pitfalls in Social Media
By now, nearly everyone knows (or should know) about the Digital Millennium Copyright Act (DMCA). If you don’t understand the DMCA, the rules are simple: if you didn’t create it, pay for it, or obtain a Creative Commons license (that is specific permission to use it), you’re volunteering to pay the copyright holder three times the value of whatever it is you post. You can read more about the DMCA here, and more about the rules regarding images or photos here.
Most people are aware of the pitfalls of not clearly defining who owns LinkedIn, Twitter and other social media accounts when an employee or contractor is posting social media on behalf of a third party (employer or client, or even a charity or “informal association”).
But did you know that you can be sued for posting photos of your friends on Facebook without their permission (the right of publicity)? Or that you can be fired from your job for mentioning a co-worker or customer online (over 100 different laws and rules)? Or that clicking the wrong Facebook Like can get you fired (a judge recently ruled that a Facebook “like” is “not sufficient speech to qualify for protection”)?
And we mustn’t forget about the scariest phrase in the social media litigation lexicon: personally liable. That’s the one that keeps me up at night — and keeps me signing up for workshops like the one Shawn Tuma is offering at the Dallas Social Media Breakfast on August 30. It’s free, but advance registration is required — so if you’re near DFW, come and say hi — I’ll be there for sure!
