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This article is included in an upcoming TRENDS special focus on Intellectual Property Law, sponsored by Whiteford, Taylor & Preston. Johnson is co-chair of the firm's Nonprofit Organizations & Associations Team.
Association executives should be aware of potential legal risks social media can pose for their associations.
1. Copyright infringement. Associations can be sued for copyright infringement for content posted on their website. The Copyright Act provides for treble damages and attorney fees for copyright infringement. In severe cases criminal penalties may be imposed. Associations relying on the fair use doctrine for protection should ensure the content meets the fair use requirements, which are more limited than popularly believed.
As hosts of user-generated content, associations can take advantage of provisions of the Digital Millennium Copyright Act for protection from copyright infringement claims due to material posted on their website or social media pages. Adhering to the act, associations should establish notice-and-takedown procedures and promptly remove content when notified of infringement by the copyright owner.
2. Employment claims.
Pre-employment: The use of social media in pre-employment screening generally is permissible, so long as the employer has not bypassed applicant profile privacy settings or based its employment decision on legally protected characteristics.
Unauthorized disclosure of confidential information: The potential for unauthorized disclosure of the employer’s confidential information has increased significantly with the instantaneous transmission of social media sites.
Harassment and disgruntled employees: Postings by employees that criticize their employer, the employer’s product, supervisors or coworkers could be grounds for disciplinary action or termination. The association is responsible for the actions of its management staff. Under state and federal labor laws designed to protect unions, employees have a right to communicate about working conditions.
Ownership: Ownership of social media profiles and content should be clearly stated in a written agreement when a staff member is tasked with maintaining the association’s social media presence.
3. Third-party content. The federal Communications Decency Act of 1996 shields associations from liability for content posted by others unless the organization induces or uses the problematic content in some way. For additional protection, associations should monitor third party postings by having a reporting system in place for complaints, respond quickly to complaints, and prompt removal of unlawful postings.
4. Insurance. Your current insurance policies (such as directors and officers, media, and errors and omissions policies) should be examined to ensure coverage is current and extends to claims resulting from social media use. Obtain a separate social media coverage policy if necessary.
5. Online solicitations. Charitable organizations conducting online fundraising should know that state charitable solicitation laws apply to both traditional and Internet-based fundraising. Forty states and DC require charities to register with a state agency before soliciting contributions from residents of that state. Online solicitations have the potential to reach donors everywhere. Charities may have an obligation to register and report online fundraising activities in multiple jurisdictions.
6. Endorsements and testimonials. The Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising require disclosure of any connection between the endorser (an association’s member or employee) and the advertiser (the association). The guides prescribe the information that must be disclosed.
7. Antitrust. Associations must guard against unintentional antitrust violations that can occur when members post comments or participate in online chats about pricing, allocation of territorial divisions, boycotts, admission to membership and bid rigging. Such discussions pose a real danger, since associations frequently bring competitors together. The antitrust laws can be violated simply through informal communications involving an implied understanding among the parties to hinder competition. Action immediately should be taken to halt such discussions and remind users of the organization’s policy on the use of its social media sites. Unlawful discussions on the organization’s website should be removed immediately once discovered.