The increase in the social medium Twitter’s influence has led to its use as a cutting-edge advertising tool. The more than 200 million users of Twitter will send about 54 billion communications in the coming year. But social media are a serious matter in which the lack of due care or other wrongdoing can lead to legal liability and severe consequences.

Brand owners, licensees and the consuming public now use Twitter in extended dialogues about favored (or dis-favored) brands, new products and marketing initiatives. Brand owners with limited marketing power can be among the most successful Twitter users since its standard services are free and its new paid services–promoted tweets, promoted trends and promoted accounts–can be narrowly targeted at exactly the markets they want to reach. Almost all popular consumer brands now use Twitter and have their Twitter “followers.” This growth, however, does not exempt Twitter from the same legal concerns of traditional media. In fact, Twitter’s characteristics may put it at even higher risk than more tightly controlled and edited traditional media.

For instance, it’s a sure thing that the content of a majority of Twitter’s promotional posts has never been reviewed by an advertising or legal professional. That can lead to destruction of a brand (as well as legal liability of the brand’s licensing parties/vendors) due to improper claims being made. Also, wrongdoers such as counterfeiters and hackers can utilize Twitter to disrupt brands or target a brand’s customers to try to sell them fakes. The good news is that brand owners can take steps to prevent such mishaps. Avoiding Liability on Twitter

The spontaneous ambience of Twitter is one of its attractions, but this does not cancel legal obligations and liability for posts that breach those obligations. Legal rules about false advertising, defamation, trademark, copyright, and rights of publicity that apply to a brand’s products and to website content, print advertising and television, also apply to Twitter and other social media. Tweets which include links to photographs, videos, other content and other websites, carry further risks, since the poster often has no control over the remote but accessible content.

The best rule for avoiding such problems is to nip them in the bud, meaning: when in doubt, don’t post it–and even when in no doubt, “proceed with caution.” Once something has been tweeted, it can never be recovered or controlled. Thus, oversight and supervisory control over posting is absolutely necessary. Such control must include the authority and hands-on ability of the controlling person to edit, delete or otherwise modify posts, such as with appropriate disclaimers.

In addition, company employees involved in its Twitter feed must be educated to be aware of legally “hot” subjects and categories of content warranting close review. Such areas include content which may invoke false advertising and warranty law, defamation law, copyright, trademark and rights of publicity. Third-party content should be scrutinized by a legal professional (possibly a paralegal) who is aware of potential issues. Regular orientation sessions should also be held with marketing and creative personnel about IP rights, avoiding infringement claims, etc. Additional “Must” Subjects

In addition to avoiding liability for using Twitter, there are numerous other legal issues which cannot be ignored, including monitoring third-party produced content; the Digital Millennium Copyright Act; registering with the US Copyright Office; sending and responding to notices of copyright infringement; avoiding security breaches by hackers; pursuing counterfeiters; and taking advantage of anti-abuse and takedown programs.

Twitter itself is being forced to face its special responsibilities and experimenting with ways of preventing confusion concerning the identities of natural persons, entities or brands belonging to others. But everyone who posts on Twitter has similar and even greater responsibilities. Just as we operate our cars and trucks to avoid harm to others and liability to ourselves, it is necessary to learn the rules for avoiding those results when using social media.

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