Social media and the law 5 things you need to know

Social media is now a permanent part of our lives, not only for individuals but also for small businesses and their employees.

Smart use of social platforms can give small businesses direct and free advertising for products and services and increase brand awareness. But a lot can go wrong with improper use.

Here is what small businesses should know about social media law and its implications on their policies.

What is social media law?

The landscape of social media-related law is evolving. Generally speaking, “social media law involves the legal issues related to user-generated content and the online websites that host that content," Corinne Chen, an associate attorney at New York-based law firm Romano Law, said. It is an expansive terrain since it covers the internet and social media.

“Social media law consists of both criminal and civil laws at the state and federal level. Some examples of social media laws are those that protect or prohibit the posting of content and those that broaden or restrict privacy rights for employees," Chen added.

Digital media laws to know

Although social media laws are evolving and changing, there are certain established acts that define the landscape. Chen shared a comprehensive list of the various acts and laws that frequently apply to the social media realm:

• Anti-SLAPP statutes provide remedies for the defense of frivolous lawsuits brought to deter the exercise of free speech.
• Americans With Disabilities Act prohibits discrimination based on disability.
• Communications Decency Act regulates indecency and obscenity in cyberspace.
• Computer Fraud and Abuse Act mirrors the common law tort of real property trespass into the virtual realm of computers.
• Copyright Act sets out exclusionary rights for works of authorship, and the Digital Millennium Copyright Act limits liability to service providers.
• Children's Online Privacy Protection Act (“COPPA") limits the collection of personal information of persons under 13 years of age.
• Electronic Communications Privacy Act (“ECPA") prohibits interception of “any wire, oral or electronic communication."
• Federal Trade Commission (“FTC") Act permits FTC investigation of unfair trade policies.
• Lanham Act provides protection for trademarks and service marks.
• The National Labor Relations Act guarantees the rights of employees to participate and engage in concerted activity for better conditions in the workplace.
• Stored Communications Act (“SCA") prevents entities from accessing and storing certain private information.

What are the implications of social media laws for small businesses?

Employers should be aware of social media laws impacting their businesses, as well as how it applies to their employees. " The most important first step is to develop a social media policy—before a legal dispute arises. This can help to protect the business from risk by employees or customers," Chen said.

Here are other areas small businesses should pay particular attention to:

Reactions to reviews

Consumers post reviews of a business on online platforms as a way to voice their approval or lodge a complaint. Negative reviews can harm a business, but “reacting to those reviews can be even more harmful and can even result in legal action in some circumstances," Chen said. A business cannot retaliate if an employee or customer posts a negative review. Also, a business isn't allowed to delete negative reviews. If a positive review is posted by an employee, the relationship must be disclosed.

Third-party content

A business should have policies in place to address third-party content on its social media, especially paying attention to copyright and trademark laws. Policies should be in place to protect data, as well as customer privacy and financial information. “Material shared on social media can sometimes infringe on a copyright, a trademark or other IP rights," adds Chen.

Discriminatory content

According to Chen, “A small business should make it clear that anything employees post has the potential to impact the business. Threats of violence, hate speech, and harassment may be illegal and are more than likely contrary to company policy."

Celebrity endorsements

"Social media marketing has led to issues with endorsements from celebrity figures, athletic icons, and influencers. People may be prohibited from posting images of these celebrities endorsing products without explicit consent from the endorser," Chen said.

Running online contests and promotions

Look at the terms of service or guidelines a platform includes on its website.

Photographs

This includes the rights of social media users and third parties when posted photos are used online without permission of the people depicted.

What kind of social media privacy should an employee or a business expect?

Small businesses should be aware of privacy on their official accounts and also on their employees' personal accounts. The business needs clarity on whether the “social media account is affiliated with the employee or the employer," Chen said. Sometimes employees are given access to computers, social media accounts, and other devices associated with their employment. If there is a dispute, businesses must determine if the social media activity occurred during business hours. They must also evaluate whether the activity is personal or professional.

"Regarding employees' social media privacy rights, it becomes complicated," Alison Pearson, head of Human Resources at Hal Waldman and Associates Company. Federal law prevents employers from discriminating against an employee because of their personal social media, and employers can legally terminate employees for a number of reasons that they may not truthfully disclose. "Employers may also use these platforms as informal background checks on a potential employee. As long as regulations are evolving, be aware of your state's laws concerning social media and employee rights," adds Pearson.