In the first of a guest blog series by leading legal professionals, we look at how social media teams should be working more closely with their legal counterparts in 2019, to avoid making the brand mistakes that could trigger an unnecessary brand crisis. Here Jessica Elliott Cardon, Senior Counsel of Perfumania Holdings, Inc., one of America's largest fragrance retailers, gives her view on what legal issues could trip brands up, especially when it comes to working with influencers or running international ad campaigns.
For those who work in social media, particularly in the area of paid-for content development, your 2019 resolutions should include closer partnership with legal counsel. And, for those attorneys who advise brand-focused companies who engage with consumers and clients on social media, you absolutely must resolve to follow your clients’ social media accounts.
While the aim with brand and consumer engagement on social media is to increase followers, enhance brand awareness and expand territorial outreach, these aspirations, when successful, actually create higher legal risk and liability. Trending virally might add to a brand’s consumer recognition, but what if the brand is trending virally for the “wrong” reasons?
Partnering closely with legal can reduce the chances that a brand trends for the wrong reasons while limiting other legal risks. For instance, are you fully aware that third-party content must be properly licensed and, if sponsored or paid-for advertising content, properly disclosed to consumers as such? Also, while social media giveaways are the norm, are you complying with local and national sweepstakes and contest laws when sponsoring these giveaways?
Consider as well the territorial outreach of your social media accounts in the coming year. While expanding your brand awareness beyond your local consumer audience can improve and expand consumer engagement on-line, social media account activity can actually trigger compliance with the advertising laws of multiple countries.
Consider a bakery owner based in London who posts gorgeous photographs to Instagram of mouth-watering cakes and treats, tagging back to bakeries in Paris, New York and San Francisco. With these types of actions, the London bakery may be indicating an intent to reach consumers in France or the United States of America (potential tourists, perhaps). While these actions seem harmless, it could trigger liability with the local advertising and endorsement laws in those countries, particularly when posting paid-for content, whether content developed for your social accounts by an influencer or an independent media company.
Despite many similarities between the rules of paid content disclosure in Great Britain and the United States of America, the requirements are not identical. To avoid legal risks and to avoid jeopardizing your ability to use paid-for social media content, provide your legal counsel with the opportunity to review contracts with influencers and third-party content developers, as well as the opportunity to pre-review any deliverables from such parties before activating content on your social media accounts. You should also partner with legal counsel to review all giveaways run through social platforms, to ensure compliance with all regional and national laws. Such giveaways, through published rules, can be restricted to one territory, which helps limit cross-border legal exposure.
I close with a recommendation that all attorneys who advise clients on social media risks should resolve to follow their clients’ social accounts. By following client social media accounts, you not only learn more about your clients’ brand identity but further provide yourself with the means and opportunity to spot legal risks and issues, potentially remedying a situation before a third-party raises a legal claim. If you do not follow your clients’ accounts, you restrict your ability to spot the post that includes a celebrity image that (1) implies a brand endorsement without the celebrity’s consent and (2) fails to pay the appropriate image license fee to the photographer. You further restrict your ability to monitor giveaways and assist your clients in complying with local sweepstakes and contest laws.
With increased partnership between social media teams and legal counsel, 2019 will bring all health and happiness and, one hopes, fewer third-party legal claims!
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