Just because its "ok", doesn't make it legal.

In reviewing the social media legal headlines over the past few weeks (sorry for the week long hiatus, my oldest son is "graduating" from kindergarten and end of year festivities have been never ending...I'll try hard to meet my weekly deadline but things like that will always take precedence) I am reminded of an old maxim of my Grandmother's: "Just because its legal, doesn't make it right." 

While this was not one of her favorites (those were usually reserved for things that were "colder than..." "battier than..." or "crookeder than...") it was one that I, as an aspiring attorney, tended to hear quite often.  This rang true even more so once I entered law school and would attempt to explain to her the differences between what you "knew" and what you "could prove." What you "could prove" never mattered much to Grandma, she was always concerned more with what "was right."  Interestingly, my experience with the jury system has born out that her idea of what was "right" was much closer to what a jury is concerned with than what my law school professors had to say about what you could prove...but that's a different blog.

Earlier this month, Facebook updated its promotional guidelines (Facebook Promotional Guidelines) to remove its blanket prohibitions on promotions for tobacco, dairy, gambling, firearms, prescription drugs, and gasoline. In addition, marketers may also now require purchase for entry and target those below age 18 or that live in previously restricted countries. 

These changes have obvious implications for those brands that were previously prohibited from promoting their products via the world's largest social network, and likely has my friends in the marketing industry salivating over the opportunity to expand their client's influence and engagement in this arena.  However, to paraphrase Grandma..."Just because its alright with Facebook, doesn't make it legal."

Companies and brand managers, as well as marketing and advertising professionals, should remember that the availability of this new arena does not necessarily make sweepstakes and promotions for these (or any other type of products) necessarily "legal" just because Facebook doesn't prohibit them.  Instead, what these changes mean is that Facebook will no longer attempt to be the arbiter of these issues.  While these promotions may now be "alright" with Facebook, companies hoping to take advantage of this new opportunity must remember that Facebook's members are worldwide, and the catchy promotion, or amazing sweepstakes that you are rolling out may not be as acceptable under the laws of certain jurisdictions. 

While your gaming, tobacco, or firearm promotion may be perfectly acceptable, and completely compliant under the laws of Missouri (or whichever jurisdiction you reside) it may not be under the laws of Utah, California, Saudi Arabia, or China.  Depending upon where your target market resides, and the size of your national or international operations, the laws of these jurisdictions must also be considered if you hope to avoid potential legal issues.  (Additionally, this is yet another reminder how easily international legal issues can arise through the use of social media....while you may have never considered doing business in the UAE or the Ukraine, social media has the potential to take your company just one click away from these jurisdictions....it is important to consider the ramifications).

The implications of these changes reiterate the importance of coordinating your marketing and legal departments.  While marketing may (rightfully) be seeking to expand your business into social media in an attempt to take advantage of the unique opportunities that the medium provides, and legal may (also rightfully) be concerned about the relatively unplowed social media landscape, these departments can co-exist.  Having your legal and marketing teams on the same page, with each group understanding the benefits, and concerns that each of them see in social media is vital to your success in this rapidly growing arena.  If you haven't yet, its time to make sure that they are all on the same page.

Let me know what you think.  

P.S.  I want to take a second and send thoughts and prayers out to my friends in the Joplin, Missouri area.  The storms that have devastated that region are simply indescribable and nothing that anyone can say can really do anything to take away the devastation.  Be safe, and know that we are with you.

Does your social media campaign expose you to liablity?

Over the past  few years there has been no bigger area of growth for the marketing industry than the realm of  social media. Facebook, Twitter, and Linkedin have exploded from what was virtually a non-existent market just a few short years ago, into a significant portion of many advertising campaigns.  Indeed, over two billion dollars were spent advertising on line last year and it is predicted that this will quadruple to over 8 billion by 2015. (Media Life: Behind the Huge Growth of Social Media).  This explosive growth has not gone unnoticed by businesses and thousands have rushed to join the social media world.  From Fortune 50 companies, to small family run shops, business of all shapes and sizes are adopting social media as an effective means to reach their target customer.

While this social media explosion has provided an amazing opportunity for customer connection and engagement, there are legal issues that must be considered.  Although Facebook accounts are officially available to only those over the age of 12, studies indicate that the use among pre-teens reaches into the millions. (Consumer Reports estimates approximately 7.5 million children under age 13 use facebook).  This use by minors may have the potential to expose unwary businesses to some very unexpected liability. 

When users sign up for Facebook, their profile displays personally identifying information including their name, photo, school, employer, birthday, hometown and relationship status. Users are also able to further  customize their profile by including specific references to personal likes and dislikes such as movies, books, music and other areas of interest.  This information provides Facebook a unique ability to offer advertisers a chance to direct their advertisements to a very specific demographic, but when the information relates to minors, it may also present potential problems.

Just last week, a unique issue arose in the United States District Court for the Eastern District of New York which should have Facebook, and all businesses with a presence in social media, reviewing their programs and policies.  On May 3, 2011, Scott Nastro, on behalf of his child, J.N., brought a class action suit against Facebook in a matter styled Nastro v. Facebook, Inc., 11-cv-2128, (E.D. N.Y).  In this action, plaintiffs allege that Facebook misappropriated the names and likenesses of children for promotional purposes without seeking the required consent from the child's parent or guardian.

Specifically, plaintiffs alleged that Facebook, through its "Social Ads" feature, misappropriates the name and likeness of minors, for commercial advantage, without the consent of the minors parents. Started in 2007, Social Ads is an innovative program which essentially provides Facebook the ability to use an individual Facebook users preferences as an endorsement.  Through Social Ads, Facebook users are allowed to see which of their friends has "endorsed" a particular brand or product by displaying the names and likenesses of a user's Facebook friends who have interacted with the ad or the advertiser's brand page.  Thus, when a user "likes" a Facebook page, the user's action is recorded on the page along with the users name and likeness. Similarly, when a user "likes" a brand or responds to an event, a message is displayed to their Facebook Friend's home page feed, announcing this action.  Because Facebook does not provide an "opt out" to allow a user to prevent their name and likeness from appearing on a page they have liked, users are automatically "endorsers" of any page they like on Facebook.  The plaintiffs' suit seeks to recover for these "endorements" by minors which occur without the necessary consent of their parents. While obviously of concern to Facebook, Inc., this proposed class action, could also have major national implications.

Many corporations with Facebook fan pages include areas for their fans to submit many different types of content.  This suit is a reminder that even innocently constructed programs likely need review from counsel.  From the submission of photos and videos, to the simple ability to add a users name and likness to a list of those "liking" a page, social media's ability to allow users to engage with a company's page may have consequenses that were unheard of just a few years ago.  While your markeing department or agency can construct amazing campaigns through social media, make sure they are vetted for potential pitfalls such as those faced by Facebook in Nastro.   

Let me know what you think.