Kyle-Beth Hilfer, Esq.

I spoke recently at the GSMI Social Media Legal Risks and Strategies Summit on “Protecting Your Brand in Social Media” and “Prize Promotions in Social Media and Mobile Marketing.” Most of the audience was feeling their way into social media and trying to get a handle on the legal issues they might confront. While many attendees seemed convinced of the power of social media, they also seemed scared by the risks. I was reminded of the words of Theodore Roosevelt: “It is hard to fail, but it is worse never to have tried to succeed.” Indeed, it is possible to chart a course in social media that affords legal protection and safeguards to a brand. Below, I outline a five step process.

STEP ONE: Familiarize yourself with the social media platforms’ rules. Read the terms of use, privacy statements, guidelines, and FAQ for the platforms in which you have an interest. Discern differences in their treatments of trademarks, copyrights, privacy, and prize promotions. Determine how the platforms’ rules align with your own brand’s protections.

STEP TWO: Create policies that protect your brand. Your social media team should consist of legal, HR, and marketing personnel. The team should plan your brand’s social media policies for your people and your intellectual property. Policies for people should consider the requirements of the FTC Endorsement and Testimonial Guidelines. They should also guide employees on how to engage in social media in a way that promotes the brand and makes sense for your own corporate culture. There is no one size fits all social media policy. Each company should draft its policies to align with preexisting guidelines for social interaction, email, confidential information, and intellectual property protection. Your policies for intellectual property in social media should outline consistent use of your trademarks, DMCA takedown procedures, and protection of your trade secrets.

STEP THREE: Engage legal counsel in creating a marketing plan. Do you want to invite user generated content? How will you vet the content before posting? How will you monitor responses to the content? How swiftly can you respond to content or remove it from your pages? As you roll out into the social media space, you may take on a prize promotion or a branded loyalty program. Perhaps you will consider using geo-location technology to enable behavioral marketing. Bring legal into the discussion early as you plan strategy and your marketing approach. Rewrite your privacy policies if necessary. Review the legal paradigms that apply to your marketing efforts. Your counsel should support your business goals and be able to help you create meaningful programs with minimal legal risk.

STEP FOUR: Think proactively about other venues. The next frontier is mobile marketing. How will your social media program connect to mobile? How do the social media platforms you are on allow you to extend to mobile? Consider how your brand wants to communicate with its customers to obtain the requisite opt-in for each mobile marketing effort.

STEP FIVE: Balance enforcement with public relations. Remember that in the world of social media, cease and desist letters have frequently back-fired from a public relations perspective. Consider the amount of harm being done to the brand and respond in a proportionate way. Examine the Righthaven cases to avoid being seen as a “bully” in the marketplace. Remember that in social media, anti-social behavior can harm a brand far more than a technical copyright infringement.

© Kyle-Beth Hilfer, P.C. 2011. Kyle-Beth Hilfer, Esq. specializes in advertising, marketing, promotions, intellectual property and new media law. She is also Of Counsel to Collen IP, a full serviceintellectual property law firm. For more information about her law practice and more blog posts, please visit Kyle-Beth Hilfer, P.C. (where this post originally appeared). Twitter: @kbhilferlaw.