Author Archive for Kyle-Beth Hilfer

blogging, social media, employee engagement, brxanding

Drafting Social Media Policies to Minimize Legal Risk of an NLRB Complaint

Employers struggle in social media to protect their confidential information, their reputations, and their intellectual property. The National Labor Relations Board (NLRB), on the other hand, is concerned with protecting the statutory rights of employees.

In August, 2011, the NLRB released a report on its social media investigations that ushered in a new age of corporate social media policies. Its findings do not just apply to unionized employers. The NLRB governs certain employee activities even in the absence of a union.

NLRB Reports on Social Media Investigations

In its report, the NLRB criticized social media policies that prohibit disrespectful language or negative comments, that forbid use of the employer’s intellectual property, or that protect employer’s confidentiality. Yet, these are mainstays of any employee handbook, so what can an employer do?

First, stay in touch with NLRB developments. Case law is emerging rapidly. Second, here are some current tips for employers who are drafting their social media policies for the first time or reviewing their existing policies: Read More→

5 Common Legal Errors in Running Twitter Promotions

"Kyle-Beth Hilfer"

Kyle-Beth Hilfer, Esq.

Twitter sweepstakes and contests abound, along with several common mistakes. Below are five areas that require attention to avoid legal risk.

1. Rules Mistake.
A sweepstakes or contest requires full rules in order to create a clear contract with the consumer. Too many twitter promotions abandon this step. Marketers may see the campaign as low risk because it is short term in nature. Risk assessment, however, is not just determined by the length of a promotion. In addition, one has to include considerations of brand fame, geographic scope, and the promotion’s potential to go viral. Another reason marketers abandon rules is that they cannot figure out how to make disclosures in 140 characters. Links to official rules on a website can often solve the problem. Every promotion should have complete rules to protect the brand against problems when things go wrong.

2. Brand Trivia Campaign Mistake.
Is the trivia so difficult it takes substantial effort to find the answer deep in a website? Are you asking people to follow your tweet feed for a substantial period of time and read each day for clues? A regulator may see that requirement as substantial effort. If a sweepstakes requires substantial effort to enter, an alternate method of entry is required.

3. Speed to Enter Mistake.
Speed is not skill in the online context. The element of chance predominates over skill in determining whether a consumer is the “first” to tweet about something. If your twitter campaign relies on speed, realize that it may not be a skill game, but rather a sweepstakes in need of an alternate method of entry.

Image via CrunchBase

4. Coupon/Discount Offer Mistake.
Have you made adequate disclosure of any limitations, particularly when using the word “free”? Have you determined that your offer is a premium offer, or are you inadvertently running an illegal lottery in giving away free items? A premium means there is no chance involved. Everybody receives the same item. If you are giving away different items, and chance determines which item the consumer receives, this is not a premium offer.

5. Tweet to Enter Mistake
If you ask consumers to tweet about your company or its products or services in exchange for a sweepstakes entry, that may be seen as a material connection under the FTC Endorsement and Testimonial Guidelines and require the use of hashtags to disclose the connection. In addition, telling them what to tweet may be seen as putting words in their mouths and preventing an honest testimonial. Consumers should use their own language in tweets.

© 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 service intellectual 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.

Fearless Marketing: Five Steps to Launching a Social Media Presence

"Kyle-Beth Hilfer"

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.

5 Common Legal Errors in Internet and Social Media Marketing

"Kyle-Beth Hilfer"

Kyle-Beth Hilfer

[tweetmeme]I have met a surprising number of experienced business people who do not budget for legal advice. Here are five common legal mistakes in Internet and social media marketing that can result in financial penalties and business interruption.

1. COPYRIGHT MISTAKE: Photographs on Google Images are not free for the taking. Regardless of whether a photograph bears a copyright or watermark symbol, it is not in the public domain. Someone holds the copyright. It may even be a famous organization like Getty Images. If you use these images, you may receive a cease and desist letter and a claim for financial damages. Always take photographs from stock photo houses or buy rights directly from the photographer. Read the licenses to be sure you understand your rights.

2. TRADEMARK MISTAKE: Trademark infringement is not based on precise copying. The test for trademark infringement is likelihood of confusion in the marketplace. This means altering one word of a slogan may not ward off a trademark infringement claim if you market in similar trade channels with similar goods. Take the time to create original trademarks.

3. DATA COLLECTION MISTAKE: If you are collecting any consumer data on your website, in social media, or on mobile devices, you should publicize a privacy policy that explains to consumers where that data goes, how it is shared, and how it is protected. An astounding number of website owners do not protect themselves properly with updated Terms of Use and Privacy Policies. Many who have those policies do not update them annually. Review these policies annually with legal counsel to see if they still align with current business practices.

4. PRIZE PROMOTION MISTAKE: If you are running a sweepstakes or contest, do not copy rules from another promotion you find on the Internet. Every promotion has its own details that require careful crafting of rules. Each of the 50 states has complex statutes governing prize promotions. There are a variety of contrasting requirements on such issues as rule requirements, disclosures in advertising, prize delivery, and registration and bonding. Using social media platforms for public voting can render the promotion an illegal lottery if not implemented properly. Prize promotions require close legal vetting.

5. MOBILE MARKETING MISTAKE: An astounding number of marketing companies are trying to break into the fast growing area of mobile marketing. They rely on third party lists of mobile phone numbers, and they have not done proper due diligence. They do not understand the legal requirements of obtaining consumer opt-in before commencing a mobile campaign. Enforcement of federal statutes in this area as well as state attorneys-general investigations are on the rise. The financial ramifications of a failure to obtain a proper opt-in can be staggering. Consult with your legal counsel about the proper way to obtain the opt-in before commencing a mobile campaign.


This post first appeared on the author’s blog. © 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 service intellectual property law firm. For more information about her law practice and more blog posts, visit