This caricature from attorney Shawn E. Tuma’s plain English guide to social media law is funny — but the consequences of losing a lawsuit because of a careless social media post are anything BUT funny.

A recent article on the MyPRGenie blog about where to find great images without copyright hassle generated a lot of buzz on Twitter.  One person, however, posed the question, “I’m in PR — if I’d wanted to go to law school, it would have made my parents happy.  Why do I need to understand legal issues to do my job?”

Miranda Tan, CEO of MyPRGenie, replied, “The short answer is that litigation, especially around social media, is increasing for all marketers.”

Copyright — for images, music, trademarks, and content — is one of the major contributors to the rise in the legal headaches PR people and marketers face.  Take the recent case of the Michigan PR firm that created a public service campaign.  They thought they’d done everything right, getting permission to use a popular song, and when the video made it debut at an NFL game, it soon went viral, with more than 2 million hits in the first few days.

That’s when a so-called “secondary rights holder” had the video removed from YouTube for copyright infringement, bringing the campaign to a screeching halt while the parties negotiated permissions, payments, and other legal issues.

But, Tan says, copyright isn’t the only potential litigation threat that PR and social media marketing professionals face.  Here’s a list of five other legal questions to answer for yourself and your content before your next post.

Note: The author of this post is not an attorney, and nothing in this article should be construed as legal advice.  Always consult a licensed attorney who understands social media and the fast-moving area of social media and PR law whenever you make decisions about your marketing program’s litigation risks and legal strategy.

Issue #1: Does the Law Match the Technology?

One of the reasons that litigation is increasing so rapidly is that the laws that are on the books haven’t kept up with advances in technology.  Dallas attorney Sean E. Tuma, one of the leading experts on social media law, says that legislatures want to keep up — but they simply can’t do it.

So when considering the laws that might affect your next PR campaign, Tuma advises marketers to look beyond the obvious laws (like copyright), to the more mundane rules like contract and common law.

One of the most common problems that individuals run into online is an agreement they have signed — an employee policy, the terms of service (TOS) or end user license agreement (EULA), or a contract — that doesn’t seem relevant before they post something.  But contract law and agreements apply both online and off.

Many websites (like Facebook and Twitter) have terms of service that spell out what you can and can’t do on their site.  But how many of us actually read them before clicking “accept”?

Did you know about this line buried in the Facebook TOS: “You must not condition registration or entry upon the user taking any action, using any Facebook features or functionality, other than liking a Page, checking in to a Place, or connecting to your app.  For example, you must not condition registration or entry to any promotion upon the user liking a Wall post, or commenting or uploading a photo on a Wall.” 

Do some Facebook pages violate this rule for their contests or sweepstakes? You bet!

Will you be able to do it without getting your company’s Facebook page suspended?  Who knows? It’s a roll of the dice — are you willing to risk it?

For more detail on the kinds of contracts and agreements that can affect your social media and PR campaigns, download Mr. Tuma’s presentation on the subject by clicking here.

Issue #2: Who Owns Social Media Accounts?

One of the most contentious areas in social media litigation is the ownership of social media accounts and content.  From lawsuits over LinkedIn contacts to disputes about Twitter accounts to wrangles over employee adherence to social media policies, this is the fastest growing area of legal troubles for all marketers.

If you have an existing social media account before you take a PR job, and you will be using that account to post or share information for your new client or employer, make sure that the ownership of the existing social media account is spelled out before the first post is made.  And if you’re starting a social media campaign for a new client or employer, seriously consider setting up a new account — something like PRGenieJohnny — to separate your work account from your personal JohnnyADoe account.

Issue #3: What Government Regulations Matter?

If you work in a heavily regulated industry — banking, education, financial services, government, health care, insurance, medicine, pharmaceuticals — chances are you already know that your PR, marketing, and social media messages are subject to rules from an alphabet soup list of regulatory agencies.

But the word hasn’t gotten out as widely as it might have — the people most likely to be fired (or even prosecuted) for online comments are still public service employees (teachers, teacher’s aides, nurses, police and firefighters), most of them posting what they thought were comments protected by the First Amendment.

But there are other federal and state rules that affect everyone online, such as CAN-SPAM (which DOES apply to Twitter and Facebook direct messages, not just to email) and Federal Trade Commission rules on truth-in-advertising.  Do you have an auto-responder set in your Tweet scheduling app to thank people who follow you, and suggest that they also like you on Facebook — or download something?  Does that constitute “spam”? For now, it’s up to each user to decide whether to report a direct message to Twitter as spam.

For more on what constitutes social spam — and how to protect yourself from it — check out C.G. Lynch’s excellent article on Twitter spam in PC World.

One area of government regulation that is getting a lot of companies into trouble these days is the National Labor Relations Board stance on social media policies.  For instance, many companies have long had policies that prohibited employees from commenting on pending litigation, disparaging the company or its products, or criticizing management — but even if your firm is a non-union shop in a right-to-work state, these policies may violate rules intended to protect employees who want to unionize.  So make sure that your social media and PR policies comply with changing NLRB rules.  For more details, click here.

Issue #4: Do You Need Permission to Post?

Some lawyers have never heard of the right of publicity — until one of their clients gets into trouble for violating it.   Simply restated, the right of publicity is the right of every person to control the way their “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms” are used.

It’s the right of publicity — not the right of privacy — that comes into play in the so-called Streisand Rule about publishing images of a celebrity’s home, and it’s the right of publicity that makes posting photos of your employees, guests at a fund-raiser, or customers at your business, problematic.

Sometimes, getting permission before you post an image, a comment, or (especially) a video can be the most important step in planning a social media or PR campaign.

Issue #5:  How Do I Protect Myself?

If you’re like most people confronted with a list of things that can get you sued or fined, your first reaction is to question whether or not it’s worth it to take the risk.  When it comes to social media and PR, there’s no question that they’re among the most cost-effective ways to market your company’s products and services — and opting out of either one isn’t really an option.

So the question becomes one of protecting yourself and your company, and the best advice we can offer is simple:  understand the rules, and minimize your risk by following them.

Three important steps can minimize the risks:

  • Create a social media policy, train employees on following the policy, and enforce it evenly and fairly.
  • Involve legal and compliance teams in your PR and social media planning process, especially if it’s a new area for the company.
  • Purchase Cyber Insurance to protect your assets.

Cyber Insurance not only protects in the event of litigation, but most policies come with an audit that helps you see where the current risks are, and outlines steps you can take to minimize them.  It usually also protects in the event of a hacking or security breach — a separate risk that rapidly growing businesses (especially those that accept credit cards or store customer data in the cloud) need to consider.