Businesses are using social media to develop their brand identity and connect with customers. They often overlook the legal ramifications that could arise.

In today’s market, it's almost impossible for a business to not be involved in social media. In 2010, Facebook surpassed Google in terms of web metrics with over 700 million users as of January 2011. Twitter and LinkedIn continue to grow as well. Location-based services like GoWalla and Foursquare have become mainstream rather than the exception to the rule. There are also overabundances of smaller social utilities which are regularly popping up. However, the law has not been able to keep up with the rapid growth of social networks.

When the Internet began its growth in the late 1990s, government and legal entities rushed to develop laws to govern the World Wide Web. Consequently, there are very few cases that have actually gone to court regarding social media and the laws governing them (while many have been settled outside of court). The reason?

Nobody wants to be made an example of. Consequently, there are going to need to be some major lawsuits or decisions by federal courts and appellate courts to decide what are acceptable practices online for any change in the current business climate to take place. There are legal ramifications for everything that is done online, and many people and businesses simply don't understand that.

Most Common Laws Broken by Businesses in Social Media.

The reason why it is so difficult to navigate legalities in social media is that laws can be interpreted so many different ways, businesses run into obstacles often where they have one lawyer telling them one thing and another lawyer saying another. Nothing is really black letter law yet.

That unknown legality and a bit of the sensation that it is the Wild West, means that companies are making a bounty of mistakes regularly and they likely do not even know it.

On of the most common areas is Copyright/Trademark: According to the United States Copyright Office, a copyright is "a form of protection grounded in the US Constitution and granted by law for original works of authorship fixed in a tangible medium of expression." In social media, users and businesses upload content (photos, videos, etc.), often including copyrighted material. Do you have a legal right to repost a photo or video without proper attribution? Just because content is online does not mean it can be reposted. Every time it happens you are open to a $150,000 violation. However, at this point each individual or company must self-police.

If you don't have the rights to use somebody else's property in copyright or trademark, you're opening yourself up to major legal liability. This is a big problem that needs to be addressed, and Congress is trying to figure out what to do about copyrighted and trademarked property online at this very moment, because it's being stolen every single day.

Trademarks, generally, are a form of legal protection that may be obtained to protect words, names, symbols or sounds (trade names, services names, logos, slogans, etc.) that distinguish one particular good or service from another. In social media, falsely identifying yourself or misrepresentation could lead to legal liability. Do you have the right to promote the Super Bowl in your Facebook contest? Very likely the answer is, no, as brands pay lots of money for that exclusive right with the NFL. We saw this recently occur with the NFL suing several churches who were advertising Super Bowl parties.

Privacy: Who owns the data that lives on the web? It's a question asked over and over for years. But with the rise of social media, users have become much more willing to share personal information, birthdays, addresses and phone number on Facebook, their present location on Foursquare, what entertainment they are currently watching via apps like GetGlue, all programs which collect information on each user. Who owns that data? And can you sell it to advertisers?

The biggest problem is the use, storage and collection of data that is used in social media. Both user-generated content and content pulled from other platforms leaves you open to potential legal issues.

At the very least, make sure the content your business is publishing is not copyrighted or trademarked and that you don't improperly share user data. Again, it may take a large legal ruling for brands to begin paying attention to social media law, but nobody wants to be that brand to be made an example of.

The current world presents us with a market where consumers have just as loud of a voice as companies, or employees have just as loud of a voice as the company that employs them, and that's very different for all of the marketing folks, who are used to controlling messages and crafting an image and a brand. In social media, that's just not the way it is anymore, and brands are going to have to learn to deal with it.

For more information or to register your trademark or copyright please contact us directly.