Think the First Amendment protects you and your business when you write about yourself? Not exactly. Here's what you need to know to cover your legal bases.
Many small businesses have taken to the Internet to promote their business or industry. This can take place in many different forums, but blogging and using other forms of social media are becoming more and more common for all types of businesses--from the small start-up to the giant conglomerate. Unfortunately, the budding entrepreneur usually doesn't have an in-house legal team to manage risk, and can get into trouble if not careful.
Too often people take the view that "I'm writing, so I'm protected by the First Amendment." These people are almost always wrong. Before you erroneously shout "First Amendment," here are six ways to make sure that your company remains safe when blogging.
1. Know that copyright infringement is probably the most common complaint used to hit bloggers.
The good news? You can protect yourself. Only use or post material that: you created, you paid for--with proof, or you have written permission to use.
Even doing this might not keep you out of hot water so make sure you know the Digital Millennium Copyright Act's "Safe Harbor." You may need to take advantage of it to protect your own work or respond to claims. Since there are many articles on the topic, I'll refrain from a law school session. Take a look at the Copyright Office info on the topic, particularly starting at page 11, under "Limitation for Information Residing on Systems or Networks at the Direction of Users." The gist is that you need to have a system in place to allow for the removal of copyrighted material from your blog--including comments to blog or social media postings!
2. Don't be overzealous when describing your company or its offerings.
Another tried and true method for getting into hot water is to make false or misleading statements about your own offerings. Opinions, like "We have the friendliest customer service in town," are OK, but be careful when pointing out specific information about your products or services. The same goes for posting fake or false reviews--getting caught is just not worth it. The Federal Trade Commission has some pretty strict rules on how companies can post endorsements or testimonials. The basic rule is: paying for a review--even providing a free sample--will generally require you to disclose your relationship. The same goes for having employees or family members post reviews, even if they are truthful. Here's more information.
3. Spend time making your company and its offerings more attractive and less time bashing competition.
The pitfall here is known around the legal water cooler as "product disparagement." Be careful when engaging in comparative advertising--lining up your product with a competitor's to show how yours is superior. Lawsuits alleging product disparagement are increasing in number and turn on a pretty tricky nuance. For instance, it is one thing to say, "Our return policy is better than Brand X, since we give you 90 days and they give 15." It is another thing completely to say, "The Brand X return policy is horrible, since you only get 15 days."
This is one of those places where doing a little research and chatting with a lawyer are good ideas. And just because two megabrands might do it, their cold war advertising rules don't apply to you.
4. Get permission before you use a customer's name or image to promote your company.
It sounds simple, right? Take this example: A person claiming to be a customer of your restaurant posts a positively glowing review of your business on a social network. They love you! Certainly it's OK to copy that post and put it on your website, right? Wrong! Unless you get written permission for this use, you shouldn't use anyone's name, likeness or content. One way to easily get permission is to post terms on company websites and blogs that include provisions that give you the legal right to use any content posted to your website or blog for promotional purposes.
5. Tell the truth.
This is the best defense to a defamation charge. We already covered telling the truth about your own offerings, but you have to do the same for others. False or misleading claims about a competitor not only risks product disparagement (as noted above) but they also risk a defamation claim. The best advice here is to document all claims you make about the competition--regardless of where you make them. Keep this evidence on file in case you are sued, and you can hand the silver bullet of "truth" to your counsel. Any law student will tell you: when it comes to defamation--truth is always a defense!
6. If you use third-party sites to blog, read the terms and conditions.
Don't make assumptions! Before you use a third-party site to blog, tweet, post or link, be sure to read and follow them. Failure to do so can not only get your account shut down, limiting a possibly lucrative means of getting customers, but it can also result in legal liability.
In the end, most of this is common sense with a little law thrown in for good measure. But don't wait for a letter from a lawyer--get in front of these issues today. Staying on the right side of the law will keep you focused on the business instead of on the people threatening to sue you. If you do get a complaint anyway, the best advice is to be courteous, listen to the complainant, gather information and handle it promptly! If you have to apologize, take down or rewrite a blog, or delete a post then do it! Defending a lawsuit is a lot more painful than eating a little humble pie.
CHAS RAMPENTHAL is general counsel and vice president of product development at LegalZoom. He's also a former talk radio host (KTLK AM 1150 at Clear Channel) and an entrepreneur himself, as the founder of LegalEndeavor. @LegalZoom