The burgeoning landscape of social media has led to a surge in businesses seeking to stake their claim in this digital territory. As brands increasingly venture into this realm, understanding the importance of self-regulation and brand protection is paramount. In the same vein as TV commercials and print advertisements, the Federal Trade Commission (FTC) oversees corporate social media activities, much like how medication ads list potential side effects.
Businesses that fail to adhere to the FTC’s regulations risk both financial penalties and damage to their brand’s reputation, including potential harm to the reputation of the influencers from whom they sourced the photos.
One might be inclined to invoke the First Amendment rights as a counter-argument. However, this is likely to be dismissed. While journalistic enterprises, including gossip magazines, are shielded by the First Amendment when publishing celebrity photographs, businesses are governed by a distinct set of rules aimed at safeguarding consumers and featured endorsers.
When your organization is considering disseminating photos on social media platforms (e.g., Twitter, LinkedIn), the following guidelines should be cautiously followed:
In any scenario where someone’s image, voice, or likeness is used for promotional benefit – from traditional advertisements to tweets – securing the person’s consent is imperative. Failure to do so opens up the possibility of legal action.
To best protect your business when sharing an image that isn’t your property, secure written permission from the copyright holder or the featured individual. This may prove challenging, especially when dealing with celebrities, as was evident in the Katherine Heigl-Duane Reade incident.
Despite social networks’ terms of service often permitting the sharing of copyrighted images (for instance, via retweeting), this does not extend to commercial usage.
Before sharing an image on platforms such as Twitter or Facebook, businesses should ensure they have obtained permission, especially if the person is identified in the campaign. This follows the same protocol as publishing an image in a print ad, since the legal premise is identical.
In an era where news becomes outdated quickly, obtaining consent to share an image can be a lengthy process. If securing permission is unfeasible and you still wish to share an image, simply retweeting the original post, without significant alterations, is a viable alternative.
While the First Amendment typically safeguards a brand’s right to disseminate information, problems arise when the shared content transitions from informative to promotional or appears to imply an endorsement, potentially leading to legal challenges.
To minimize legal risks, avoid overhyping the image, refrain from tagging your brand, and simply share the original post.
Clarify the Relationship
To minimize potential legal challenges, marketers should clearly articulate the connection between the influencer (pictured) and their product. If a brand’s shared content appears more celebratory than promotional, the likelihood of a lawsuit decreases. However, an implied endorsement, such as Duane Reade’s tweet involving Katherine Heigl, infringes on celebrity rights.
According to digital intellectual property expert James Grimmelmann, “If the brand can clearly communicate that they have no involvement with the photograph, that they are merely flattered by it and do not intend to use it as a marketing campaign centerpiece, not only will they remain legally compliant, but they’re also less likely to provoke the celebrity.”
Compliance with Takedown Requests
Finally, if you’re asked to remove a post, comply promptly. While it’s understood that a live (and potentially viral) post can be challenging to fully erase from the internet, swift remediation of the situation can reduce legal repercussions.
The FTC’s guidance primarily pertains to intent, as their mission is to maintain fairness in the marketplace for consumers and protect individuals’ rights to their own images and voices. Adhering to these four tips can help businesses navigate the intricate world of corporate social media photo sharing.