By: Sharon Toerek, Principal, Toerek Law and Author, the Agency Protection System

I’m confident that nearly all of your agency’s clients are expecting you to make recommendations that include integrated marketing tactics, including, especially, the use of social media.

The challenges for agencies who execute social media strategies, though, are significant. First, many agencies don’t fully understand all of the potential legal missteps that can occur – legal risks like potential intellectual property misuse, advertising compliance issues, and the FTC’s specific rules around matters like endorsements and testimonials used in social media, for example. Second, social media is an intentionally viral, and extremely fast-moving communication medium, which means that it doesn’t take long for a misstep to get out of control.

Most importantly, failing to follow social media law principles can not only get your client into legal hot water, but can create legal risk for your agency as well.  

How do you know which “rules of the road” in social media law are most important? And how do you implement a process or procedures to protect your agency when it implements social media strategies for your clients? Consider this your mini-roadmap to social media legal compliance.

What are the risk areas in social media law for your agency?

As social media tactics shift and different platforms gain or decrease in popularity, the legal risks can change too. But, what has remained consistently important, and has become increasingly more critical for agencies and brands to understand, is the importance of the following three risk areas in social media law:

  • Proper use of intellectual property on social media platforms – Just as your agency, and your clients would be required to do in any medium, the proper use of intellectual property on social media is critical. This means implementing measures to obtain permission when using any content (copy, photography, graphics) that is not created by the agency on your social media platforms. This permission needs to be written. Remember, also, that appropriate credit to the owner of the content is expected, even when you have their written permission to use it.
  • Truthfulness of content placed on social media –  The restrictions against falsity or misrepresentation in advertising apply equally on social media as they do to offline medium, like print or broadcast, to matters like product claims, and they’re even more critical due to the viral nature of social media. False claims and misrepresentations can spread like wildfire on social channels – and walking back these mistakes electronically is highly challenging (and is ALWAYS expensive) to do once the content goes live. Give your crisis communications PR team a break and get this right before your agency puts the content out there.
  • Transparency and disclosure – the FTC has specific rules around the use of testimonials and endorsements in advertising, and is applying them with increasing scrutiny to social media and content marketing. Know the rules requiring proper disclosures when you are engaging a blogger, celebrity, or thought leader to promote your client’s offerings on social media, and make sure the actual promoter knows them too and agrees in writing to follow them. Most critical is the requirement that if whomever is talking about or promoting your client or its products or services on social media receives anything of value (money, product, other consideration), they MUST disclose it. And agencies can be liable along with their clients when the disclosures are omitted.  

The most critical step for your agency toward compliance with social media law? Your agency needs to have a clear and well-communicated (this means WRITTEN) social media policy in place to manage these issues internally, and to help your clients manage them, too.

How should you design an effective social media policy?

An effective social media policy should be created by a team, not in a vaccum. It should involve input not only from the marketing and communications team, but also from human resources, legal, and IT professionals in your agency or, in the case of a client, in the client’s company.

By establishing common rules and policies among these stakeholders early on, the team gets input from all areas of the business, plus makes it easier to ensure that the social media policy is consistent not only with social media law, but with other business policies of the company (or your agency) like information confidentiality, intellectual property protection, employment policies, and personal device use policies (particularly in the era of the “Bring Your Own Devices” workplace).

What should be included in our agency’s social media law “toolkit?”

What’s the easiest way to make sure the Agency doesn’t miss something here? By being proactive and having a toolkit of ready legal agreements, templates and checklists prepared and available for your agency employees, as well as the many other routine legal matters the Agency will face regularly.

Your social media law toolkit should include documents like:

  • A written set of internal social media rules for the company or agency – including matters like a designation of who is responsible for the agency’s social media accounts, and who has the authority to access them.
  • A written set of advertising rules, and testimonial disclosure requirements – for the agency’s internal team to use as reference, but also to share with the agency’s clients, and with any third party influencer or endorser who will use social channels on behalf of the client.
  • A standard social media acknowledgement and agreement template – to have ready to use whenever the agency’s recommended strategy includes using third parties to promote on behalf of the client using social media channels. The template should not only include a set of model rules and requirements for reference, but the written agreement of the promoter, endorser or thought leader to follow the rules and be responsible for any failure to follow them.

I hope you found this information helpful! To make the process as efficient as possible, I included an easy-to-use template for a Social Media Policy (and other documents the Agency will need to manage its legal affairs) inside my Agency Protection System. You can learn more about the system here.