LEGAL CORNER

I’m Going Social and Mobile, So Now What Do I Need to Worry About?

Social media and mobile marketing is no longer just for the Silicon Valley tech companies anymore.  Even John Deere has a Facebook fanpage and 7 Eleven does mobile marketing.  In one of my previous columns I wrote about the terms and conditions you need in your pay-per-click marketing contracts (available on the archives at www.visibilitymagazine.com).  Now, we look at the ways you can protect yourself when you embark on social media and mobile marketing campaigns. 

It’s merely Facebook and Twitter, what could go wrong?

Although social media is in its relative infancy, its use has already sparked litigation.  People insulted or businesses disparaged on Twitter or Facebook have already taken to the courthouse to exact revenge and the Federal Trade Commission has already completed its first investigation of bloggers provided improperly payola.

Your level of involvement as a marketing professional with your clients dictates your level of concern and the length of your contract.  If you merely help set up the Facebook page, blog, LinkedIn Company profile or Twitter account, then make sure you limit your liability to that level of involvement.  The last thing you need is a renegade employee of the client using the account you set up to create unwarranted liability for you.

The best practice, therefore, is to spell out your involvement in the contract.  For example, specifically state:  “Client acknowledges and understands Marketer will consult with Client on social media marketing and may set the Client up on various social media platforms such as Facebook, YouTube and Twitter, but Client remains solely responsible and liable for all content and the management of any such sites.”

You can also limit your liability through an indemnification from the client.  Indemnfication generally requires the customer to defend you should you ever be named in a lawsuit because of the work you are doing.  It generally also requires the customer to pay any judgments against you.  Of course, if your client cannot afford to defend you or pay any claims, you will be on your own. 

You should nevertheless include indemnity language such as:  “Client hereby represents and warrants the truth and veracity of the content and information provided to Marketer for the delivery of the services described herein.  Client agrees to indemnify, defend and hold harmless the Marketer from, against and with respect to any claim, liability, obligation, loss, damage, judgment, cost or expense, including reasonable attorney’s fees suffered or sustained by the Marketer, (i) arising out of or relating to any breach or default by Client under any representation, warranty, covenant or other provision of this Agreement, and (ii) any negligence of Marketer.  Should content be posted on any site directly by Marketer, Client agrees to indemnify, defend and hold the Company harmless for any and all claims related to such actions in the broadest form allowed by law.  The sole remedy for Client should any erroneous or damaging information be posted on any websites directly by Marketer shall be removal and editing of the material and there shall be no economical recovery for such actions.”

This provision attempts to make the customer responsible for any liability that arises as a result of the content of the social media marketing campaign.  It also attempts to limit your liability to the client should they try to sue you.  Because the laws are different in each state or jurisdiction, the enforceability of such a provision is not always certain.  You should consult with a legal professional to cater language specific for your needs and your jurisdiction.  Including such provisions is not a guarantee to keep you out of trouble, but I would much rather defend a client with this in their contract than a client without it.


Mobile marketing missteps to avoid

Marketing for the mobile market creates its own unique and even more nascent issues.  Lawyers are still trying to figure out the pitfalls as more dollars shift to mobile marketing.  Even at this stage, there are certain best practices that should be followed.

First and foremost, mobile marketers must accept it is an opt-in medium.  Documenting consent from customers should be priority number one.  As an outside consultant, you should either contractually require the client to do that or closely monitor the mobile marketing efforts yourself.  If you are merely setting up the platform or consulting while the client executes the plan, your contract should require the client to warrant and represent that they are not in violation of any laws or regulations and they are responsible for maintaining all records and processes for ensuring their program is opt-in.  Merely accepting the client’s statement that certain customers on a list have already opted in can create problems if you execute the mobile marketing strategy for them. 

For those new to mobile marketing there are groups such as the Mobile Marketing Association and the DMA that provide self-regulatory guidelines.  Otherwise, your program could run afoul of Federal Trade Commission (previous column available online), CAN-SPAM (previous column available online), state deceptive trade practices acts, Do-Not-Call Rules, the Telephone Consumer Protection Act of 1991, Customer Proprietary Network Information rules and marketing to minors concerns such as the Child Online Privacy Protection Act.  Doing sweepstakes, contests or offering prizes opens a whole new slew of issues that will be covered in future columns.

While the minutia of all of the applicable rules is too detailed for this column, many problems can be avoided if the consumer voluntarily opts in and no avarice is used to obtain that consent.  Setting the opt-in provision for mobile marketing from your traditional website as the default is frowned upon.  You should have clear and conspicuous disclosures and make it easy to opt out of unwanted mobile marketing. 

Once permission is granted, all cost issues must be clearly disclosed at one time in a prominent fashion.  The Federal Trade Commission has already prioritized cost disclosures, unwanted calls and marketing to children.  Given the limited screen space, there is some debate right now whether a majority of the disclosures can be embedded in a link.  At this point, I would recommend that if it has to do with charges associated with the message and the ability to opt out, it needs to fit somewhere on your initial message.  Let us lawyers stick all of the other legal gloppity-gloop in a link.

Because of the myriad of issues, as an outside marketing consultant, the more you delineate the responsibilities between you and the client the better for all involved.  Nothing can alleviate all risks, but the little steps can make a big difference should a problem arise.