Communications law: Keeping your association safe
At the TRENDS annual Communication Legal Update in October, panelists Erik Pelton, Erik M. Pelton & Associates; A.J. Zottola, Venable law firm; and Jeffrey P. Altman, Whiteford, Taylor & Preston, discussed the legal challenges arising from social media communications, and offered solutions.
The laws and regulations for advocacy communications depend upon the type of organization, communication, medium and audience. 501(c)(3) associations can conduct unlimited education on issues and public policy, and limited lobbying for legislation and administrative action. 501(c)(6)s can conduct unlimited education and lobbying and engage in some political activity, subject to the primary purpose test and IRS and FEC requirements. 501(c)(3)s cannot participate in political activity for candidates or elections.
For a (c)(3), an alert to Congress with a “call to action” would be lobbying, but publishing a report on its website before bringing it to Congress would limit lobbying expenses to copying the report. Timing matters: if the activity is conducted in October of an election year, it is more likely to be considered lobbying than if it were a year-long initiative.
Lobbying expenditure limits are defined by the 501H election or the “facts and circumstances” test. Meticulous record-keeping of staff and volunteer activity, as well as expenditures, is required.
Mistakes can be exacerbated in social media. If a (c)(3) staff member endorsed a political candidate using an association account, instead of a personal one, such endorsement could be imputed to the organization. Associations can implement policies about employee use of organizational resources, and what to say when speaking as an individual.
Creating social media policies for your staff is also important to protecting the association. By stating that the association owns all content on company accounts, an organization can prevent an employee from claiming ownership of the group’s LinkedIn contacts. Policies should also be enacted for the internal use of social media. For example, in using social media to vet candidates, human resources might be safer viewing a LinkedIn profile rather than the individual's personal Facebook account.
Dissemination by social media is immediate, rapid and public, so the effects of an alleged defamatory statement – harming another through false statements to a third party – are magnified. Enacting and enforcing a policy of taking down inappropriate material and utilizing disclaimers can minimize the risk of defamation claims.
In addition to the above protections against misuse of social media, associations need to address allegations of trademark and copyright infringement and enforce the above "take-down" policy. Because contractors and volunteers, unlike employees, own the content they post, associations can use Terms of Use to assign such rights to the organization. When collecting personally identifiable information, privacy notices with disclosure and consent requirements offer a measure of protection.
One more area to watch out for is using promotions, raffles, sweepstakes and other contests to raise money. Using disclaimers and limiting participation will aid compliance with the respective state laws, which vary greatly.
Social media allows associations to increase the impact and reach of their messages. By crafting employee policies and online terms of use, and complying with the relevant laws, associations can manage the legal and public relations risks.
Lees is legal affairs VP at the American Diabetes Association. Contact her at RLees@diabetes.org.
