Ignore Social Media Rules At Your Peril

Media campaigns featuring broadcast, online and social media components can give advertisers an ROI in which whole is greater than the sum of the parts. However, that 1+1+1=4 math can also add up in penalties for broadcasters that fail to follow regulations from the FCC and others governing each of these platforms. Just ask the broadcaster that was fined $6,000 by the FCC for not following its rules in an online contest that had also been promoted on air.

In this instance, a contestant complained about a contest awarding tickets to a musical where the on-air promotion directed the audience to join the station’s loyal-listener page to enter the contest. While the station had assumed the contest was beyond the commission’s jurisdiction because it was conducted online, the FCC decided that the contest’s ground rules needed to be broadcast as well as appear online since there was an on-air element.

This example was brought to the attention of MFM members by a team of legal experts at Lerman Senter who provided an overview of laws that govern cross-platform campaigns involving social media in an article that appears in MFM’s The Financial Manager magazine. The article was prepared by S. Jenell Trigg, chair of the firm’s IP and new media and technology practice group; John W. Bagwell, a member of the firm; and Laura M. Berman, who is an associate.

What we learned from the experts is that these campaigns must not only comply with standard state or federal laws that apply to all promotions regardless of the delivery method, but they also must follow rules that are unique to social media. Here are a few examples of rules that stations will need to follow when implementing a social media promotion:

FCC Contest Rules. The FCC’s contest rule applies to any broadcaster contest either conducted, or merely advertised, on-air. Broadcasters must disclose all of the contest’s material terms on-air when the contest is first announced and periodically throughout the contest period.

Privacy Protections. One area of increased legal scrutiny is the collection of user personally identifiable information (PII). These rules require informing contestants how their PII is collected, used, shared with third parties, protected from unauthorized use, and whether such PII is used for secondary purposes.

A privacy policy posted on the website should address these concerns as well as govern PII that is collected and used on social media platforms. Since PII collected via social media sites is subject to different consents and operating rules, the experts recommend this information is maintained separately from PII collected via website(s). The privacy policy must address state laws governing PII as well as those from Federal agencies such as the Federal Trade Commission and rules governing PII involving minors contained in the federal Children’s Online Privacy Protection Act (COPPA).

Copyright and Trademark Issues. Many social media promotions involve user-generated content (UGC), such as photos, essays or videos, which requires stations to make sure entrants hold the necessary rights to their content, either by owning it or through a license from content owners. This is particularly important when a piece of UGC contains music, since the station’s license agreements with organizations like  ASCAP,BMI and SESAC do not allow contest entrants to post musical works on social media.

Although compliance with the safe harbor rules of the Digital Millennium Copyright Act (DMCA) protects stations from third-party liability for copyrighted content on their website, the experts warn that DMCA protection will not extend to third-party content posted on social media platforms.

In fact, the Lerman Senter team says leading social media sites, including Facebook, Twitter and Pinterest, not only “disavow responsibility and legal liability for any user content on their platforms, they also require users to agree that their use of a platform complies with all applicable laws and does not infringe any third-party rights.”

With this in mind, they recommend stations post UGC on their own sites rather than a social media platform. In addition, stations should have contest entrants confirm upon entry that they either own all of the rights associated with the content or have obtained those rights from necessary third parties. The official contest rules should include a similar provision as well as require entrants to grant a broad license to use the content. The use of a minor’s image also requires parental consent.

Social Media Sites. Each social media platform also has its own requirements governing contests conducted by third parties. For example, Facebook has sets of rules that govern contests administered either through Facebook or through contests promoted on Facebook. The company also details specific requirements for how its name, logo and trademarks may be used.

While Twitter does not explicitly prohibit businesses from administering contests or notifying winners through its platform, the site discourages certain practices, including those involving the creation of multiple accounts or repeatedly posting the same tweet. The Lerman Senter legal experts also remind us that tweets delivered via text messages are considered to be phone calls, subjecting them to the Telephone Consumer Protection Act (TCPA). Twitter also has specific policies for using its marks that will need to be followed in order to avoid legal penalties.

Currently, Pinterest prohibits any commercial use or third-party benefit except the ones that it has explicitly permitted. Accordingly, the experts remind stations using Pinterest in their contests to follow its polices pertaining to terms of service, privacy, acceptable use, copyright and trademark. Speaking of trademarks, use of Pinterest’s trademarks without its express written consent is prohibited. Since Pinterest is designed specifically for posting content, the experts say it’s very important for stations to address copyright and trademark issues concerning UGC.

Shifting Situations. The Lerman Senter experts also remind us that the policies and guidelines for using social media are constantly evolving. In order to avoid the penalties for not complying, it’s crucial for stations to meet these requirements and subsequent changes in the planning process. This includes working closely with your legal counsel to help ensure that each promotion abides by the rules governing this ever-changing social media landscape. While their article highlights several of the major legal requirements, “the information is not exhaustive,” they note.

As the authors conclude, “Violating any of the requirements, or encouraging others to do so, can result in monetary liability or your loss of access to these platforms, resulting in a loss of the many benefits that social media has to offer.”

No one will like the way the numbers add up when penalties must be paid for failing to comply with the rules. Not only could knowledge of the rules have avoided the loss of revenue, failure to know them can diminish the station’s reputation with local advertisers. They are looking for experts to help them navigate the digital media world wisely and successfully.

The complete article which is entitled, “How Do You ‘Like’ Me Now?” appears in the September-October 2012 issue of TFM. It is also available on the Lerman Senter website.

At MFM and BCCA we are beginning to dip our toes into the social media world. We use LinkedIn to start conversations with, and get insights from, our members and others involved in the world of media finance. Twitter is an excellent vehicle for notifying followers about articles and other updates of interest. The constantly evolving legal landscape has us steering clear of contests, user data collection and user generated content.

I hope that you will take a minute to share your insights and suggestions on additional ways to ensure that when we do the math on cross-platform promotions involving social media the whole will end up being greater than the sum of its parts. Please comment below, start a conversation on LinkedIn or send a tweet — MFM is @mediafinance and BCCA is @BCCA credit. I also welcome your emails.

Mary M. Collins is president and CEO of the Media Financial Management Association and its BCCA subsidiary. She can be reached at [email protected]. Her column appears in TVNewsCheck every other week. You can read her earlier columns here.