Free speech: Say what on social media?

When using social media to sell products or services, there is a delicate balance between free speech, privacy and liability. Although the First Amendment of the United States Constitution bars Congress from passing laws that restrict free speech, that protection has limits when it comes to business. (Page)

“Companies are entitled to free speech, but their commercial speech is less protected,” writes Tom Bell, an attorney with Perkins Coie. “The lower protection comes in the form of a higher standard of care for truth and accuracy.”

So what does that lower protection look like? Let’s say you’re promoting a new bookstore. You couldn’t create fictionalized “customer comments” about your knowledgeable staff and post them on your website; pay a blogger to write about your store’s great selection without disclosing her connection to you; or expect employees to recommend the store on their personal Twitter feeds without letting people know that they work for you.

Be real
“The Federal Trade Commission (FTC) has long scrutinized business practices within its broad mandate to regulate ‘unfair and deceptive trade practices,’” writes Brent Lockwood. All of those bookstore examples are considered unfair and deceptive trade practices and would not be protected speech. In addition, if your employees were deceptive in their Twitter feeds, your bookstore could be held liable, even if they did it without your knowledge.

This is a great book! Fair disclosure. I'm the author.

Regarding the privacy of the online community, “The FTC’s view is that if a policy is held out to the public, the site or applications operator is accountable for any failures to comply with its stated commitments,” writes Lockwood. For example, your bookstore can sell its customer email list provided you didn’t promise that their addresses would not be sold.

To achieve this delicate balance, create social media policies that ensure truthful communications and protect your company against liability – and make sure your employees understand and follow them.

“Page, Shannon. Be careful what you post: Social media and freedom of speech, Campbell Law Observer, 14 August 2013, Accessed 3 March 2017.”

“Bell, Tom. Opinion: It may be social, but it's still media, Computerworld, 7 July 2009, Accessed 4 March 2017.”

“Lockwood, Brent. Social Media Marketing: The 411 on Legal Risk and Liability. Smith, Gambrell and Russell, LLP, Attorney’s at Law Publications. Issue 28/Winter 2010/2011, Accessed 3 March 2017.”

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