Social Media Law

Dictionary.com defines Social Media as web sites and other online means of communication that are used bylarge groups of people to share information and to develop social and professional contacts.

When we think of Social Media sites; Facebook, You Tube, LinkedIn, and Twitter immediately come to mind.  However let’s not overlook sites like Yelp, Pineterest, Google Plus, Tumblr and Instagram.  In fact, any web site that provides for visitors to post comments, reviews or endorsements becomes a Social Media site.

If you maintain a web site that allows visitors to post on your site, you need to understand and respect the laws regarding Social Media.

Laws Pertaining to Web Site Owners

Congress has passed two laws which gave a “safe harbor” against legal claims to web sites for the activities of their posters.

Section 230 of the Communications Decency Act (CDA) provides a “safe harbor” against legal claims to the web site owners for the activities of their posters.  If a poster creates a post on your site which violates a criminal statute or a civil law (e.g. defamation) the liability for that action resides with the poster and not the web site owner.  Without this safe harbor sites like Facebook and You Tube could not exist as no company could afford the staff to review every post for potential liability to the company for every one of the millions of posts they receive daily.

Every web site with a Social Media component benefits from Section 230 of the CDA, and there is no need for the site to take any special action to benefit from this safe harbor.

The exception to the Section 230 safe harbor is copyright violations.  However, while the CDA does not provide this safe harbor, the Digital Millennium Copyright Act created a separate safe harbor against liability to the web site owner by creating the DMCA take down notice.  Web sites that post and practice the DMCA take down notice procedure are protected against liability from the copyright violations of their visitors.  Unlike Section 230 of the CDA, the web site owner needs to post a DMCA take down notice to enjoy the safe harbor congress created.

As a web site owner, you need to understand and use these two laws to your advantage.

In the event that your web site has employees, your actions could create liability if you do not follow the law.  It is important to implement written employee policies which tell your employees of the rights and obligations while using the company’s electronics.  This policy should include statements concerning confidentiality of company proprietary information, that Social Media sites created for the company belong to the company (e.g. a LinkedIn site,) and that all company information will be returned to the company upon termination of employment.

Be sure that the company owns the Social Media site and controls the log-in information.  Otherwise, an employee could leave your company and the company could be in a position of not being able to sign in and post to the company’s site.  This problem occurs far more frequently than you might expect, and it is a problem that is very complicated to correct.

Another item web site owners need to understand is that regardless of what your employee policies say, the National Labor Relations Board has determined that employees are allowed to express their opinions on the Company’s Social Media Sites if it relates to, or can be construed to relate to, the employee’s rights to discuss collective bargaining with the company.

Finally, the Federal Trade Commission has been responsible for overseeing company’s business activities for decades, and Social Media is no exception.  The FTC has published guidelines concerning testimonials on company web sites, and also has rules in place regarding “negative options” (e.g. one month free trial and product then ships every month at a given price.)  Web site owners need to understand the FTC stance on these items and others as well.

Laws Pertaining to Web Site Visitors

While all Americans enjoy the constitutional right to free speech there are exceptions to this right when you cross the line.  As a web site visitor, you need to make sure you do not create liability for yourself by posting defamatory comments, as well as cyber bullying, harassment, stalking, posting revenge porn, etc.  As explained above, the liability for these actions is the responsibility of the poster, and not the web site itself.

If you have questions or comments about this post, please feel free to contact me at attorneyjaffe@aol.com.