Tweet or Twibel: A Small Business Owner's Guide to Advertising Injury

Tweet or Twibel: The Small-Business Owner's Guide to Advertising Injury

2
1
chapter
2
chapter
How Social Media
Helps Small Businesses.......... 8
What Counts As Advertising
Injury? A Look at Slander,
Libel, Invasion of
Privacy, and Copyright
Infringement............................14

3
Social Media Mistakes That
Cost Small Businesses Big....22
3
Copyright Laws & Social
Media: A Small
Business Guide......................... 29
chapter
4
chapter

4
Social Media Liabilities:
Your Employees,
Fans, & Enemies........................ 35

5
6
chapter
chapter
The High Cost of Advertising
Injury Lawsuits........................46

5

Social Media Marketing
Tips for Small Business:
Cut Your Advertising
Injury Exposure...................53
7
chapter
Beyond Advertising
Injury..........................................65
8
chapter

6
INTRODUCTION
Once upon a time, advertising injury was something for big business to worry about when they offended a
competitor in a major-market TV ad. In the age of online ads and social media, though, even sole proprietors
and owners of home-based businesses are at risk for advertising injury claims.
Why? Because claims of slander, libel, invasion of privacy, and copyright infringement (all of which fall under
the advertising injury umbrella) can be filed for posts to social media sites.
Considering that 73 percent of small businesses used social media in 2012, and 25 million have active accounts on
Facebook, that translates to a lot of advertising injury exposure for the nation’s entrepreneurs.
A single misstep can trigger legal action that costs a business owner thousands of dollars (regardless of his or
her actual guilt). That’s why it’s crucial for business owners to understand what advertising injury is and how
to avoid it when promoting goods and services online.
This eBook is your comprehensive guide to advertising injury: what it is, how to avoid it, and what to do if
your business is slapped with an advertising injury lawsuit. Read on for tips on how to keep your business
financially strong and out of court.
What Is Advertising Injury?
Advertising Injury: /n/ a type of personal injury involving the publication or dissemination of libelous or
slanderous information, the infringement of copyright or brand, or other misuse or misrepresentation
Tweet or Twibel: The Small-Business
Owner’s Guide to Advertising Injury
what you need to know to avoid the costly
dangerS of social media marketing

7
How Does Advertising Injury Affect Small Businesses?
In the Information Age, small businesses are most likely to come across advertising injury issues when using
social media. That isn’t to say social media marketing isn’t without its merits. When handled well, it offers an
inexpensive, authentic way to promote your business and engage with your customers.
But social media can be tricky: people on social media sites tend to want two contradicting things. They want
to be seen and to connect with their friends on these networking platforms, and at the same time, they want
to limit how much advertisers and businesses can know about their preferences.
So how can you make sure your small business benefits from the valuable information social media sites of-
fer about your customers while staying in the good graces of the people you’re trying to connect with? This
eBook answers that question. In it, you’ll discover…
• How social media helps small businesses.
• What constitutes advertising injury in the context of social media.
• How to avoid the social media mistakes most likely to trigger advertising injury lawsuits.
• How to handle copyright on social media sites.
• How to use customer photos legally.
• What advertising injury lawsuits cost.
• How to deal with frivolous advertising injury lawsuits.
• How to minimize the chances that you’ll ever face an advertising injury lawsuit.
If you don’t find the answers to your advertising injury questions here, feel free to send us an email. We’re
happy to help keep your business safe any way we can!

How Social Media
Helps Small Businesses
chapter 1

9
Chapter 1: How Social Media
Helps Small Businesses
As we mentioned, tens of millions of small businesses have joined social media sites to promote their brands
and engage with their audience. That makes sense: 73 percent of all online adults use social media, with fully 71
percent of them using Facebook.
What’s especially encouraging is that small-business owners are savvy about the ways social media can help
a business by engaging customers, increasing brand awareness, and augmenting existing customer service
operations – even if it doesn’t offer a straightforward, dollars-and-cents return on investment.
Check out the chart below to see a breakdown of the reasons small-business owners include social media in
their marketing strategy.
Why SMBs Use Social Media
Source: https://www.networksolutions.com/smallbusiness/wp-content/files/State_of_Small_Business_Report_Wave_5.pdf
0
10%
20%
30%
40%
50%
60%
70%
Engage
Current
Customers
Boost
Current
Loyalty
Find New
Customers
Collaborate
Externally
Collaborate
Internally
Boost
Brand
Awareness
Provide
Customer
Service
Combat
Negative
Publicity

10
As with anything, though, social media is a mixed bag: in addition to offering business owners a low-cost,
high-visibility way to connect with current and potential customers, it exposes small businesses to a number
of liability risks.
Most notably, social media sites introduce the risk of advertising liability claims against small businesses. That
takes a lot of small-business owners by surprise. Because you’re not forking over thousands of dollars for air
time or spending weeks conceptualizing an ad campaign, marketing efforts on social media can feel low-
stakes and inconsequential compared to their old-school counterparts.
But anything published where the public can see it – radio ad, billboard, or tweet – can be the target of an
advertising injury lawsuit. And the costs of any lawsuit are high, even if it’s dropped before going to court.
Even hiring a lawyer can cost a couple grand.
Don’t worry, though: if you’ve got a basic General Liability Insurance policy, you’ve probably got coverage for
most advertising injury claims. So if you are sued for something you or one of your employees posts online,
you’ll likely be able to make a claim on your GL Insurance and not have to suffer any financial consequences
greater than the cost of your deductible.
(You can learn more about this coverage by jumping to the “How General Liability Insurance Protects You from
Advertising Injuries” section on page 63 of this guide.)
Of course, it’s cheaper and easier to avoid lawsuits altogether. In Chapter 2, we discuss everything you need
to know about advertising injury so you can do exactly that.

11
I talk to a lot of small-business
owners, and because I own a media
business, a lot of them ask me ques-
tions about social media. What I’ve
found is that social media is kind of
like exercise: everyone knows that it’s
important, but most people strug-
gle with finding the time to do it and
aren’t sure how to get the greatest
benefit from the least amount
of work.
As a result, too many business owners waste valuable time
and money on social media efforts that deliver very little
ROI. Luckily, there’s hope. Here’s a look at what I call the
Seven Deadly Sins of Social Media. Avoid these, and you’ll be
able to fit social media into your schedule and maximize the
impact your efforts have.
Social Media Sin #1: Mixing Personal
and Professional Accounts
Did you know 14 percent of small-business owners blend personal
and professional accounts? It’s understandable, especially for
businesses that start as side projects you want to promote
to your family and friends. But as soon as you start selling,
you need a separate page for your business. Otherwise, you
could end up facing a messy lawsuit or alienating potential
customers (see #2). The time it takes to set up and maintain
a business account separate from your personal page is well
worth the effort.
Social Media Sin #2:
Talking Politics (or Religion)
I’ve spoken to small-business owners who reasoned that
posting their political views on their business pages made
sense: after all, isn’t the point of social media to give your
business a personality? Yes, but that’s only half the story.
Your business’s personality needs to be carefully cultivated
to appeal to your target audience. Business owners already
have so many factors working against them – why add
another by potentially turning off customers who would
otherwise be enthusiastic buyers? (The caveat here is if you
own a political or religious business. Then, of course, posting
about your views makes sense.)
Posting Too Much Information
On the one hand, you want your fans to know you’re having
a sale this weekend. On the other, you don’t want your com-
petitors to know exactly which items you’re discounting and
by how much. That’s the thing it’s easy to forget: when you
post on social media, you’re not
just talking to your customers.
Anyone can see your
messages, including
the people who
would love to
take some of
your customers
off your hands.
The 7 Deadly Sins of Social Media
(+ 3 Tips for Getting it Right)
14% of small-business owners
blend personal and professional
accounts.
Source
By Rieva Lesonsky,
founder and CEO of
GrowBizMedia

12
When using social media, it’s important to figure out how
to pique interest without saying too much – for example,
announcing that customers should be on the lookout for an
email coupon for an upcoming sale (with a link to subscribe
to your email newsletter, of course).
The good news here is that sharing less means less time
spent updating your various accounts.
Social Media Sin #4: Thinking the
Social Media Fad Will Pass
Radio’s heyday is over, and newspapers are on the decline.
But impermanence is no reason to skip social media –
after all, nothing lasts forever. Social media is one of the
most powerful marketing platforms available today, and
pretending otherwise will cost you major business growth
opportunities.
Failing to Think Like a Customer
When you’re interacting with your favorite brands on social
media, you probably expect certain behaviors – quick
responses, easy-to-find contact information, etc. Are you of-
fering the same to your customers? When designing a social
media policy and maintaining your accounts, remember to
approach the resources from the customer’s perspective:
what does the customer want and how can you accommo-
date that? Without taking the time to answer these ques-
tions, any work you do for your social pages has the potential
of being wasted.
Ignoring Ratings & Review Sites
Ninety percent of online shoppers note that they’re influenced
by online reviews. Even more important? Seventy-two percent
say they put as much weight on online reviews as they do on
recommendations from family and friends. That’s incredibly
significant for a small business. If you don’t go to sites like
Yelp to claim your profile, you won’t know what people are
saying about you – and you’ll miss out on a major opportu-
nity to address issues that bother numerous people.
Thinking Social Media Doesn’t
Apply to Your Business
I was at an event not long ago, and the audience was retail-
ers who sold to very niche markets. Almost none of them
were using social media. That’s crazy! Niche and specialty
markets are perfect for social media – and the Internet in
general. Making yourself visible online lets you connect with
potential customers well outside your geographical region,
something that’s crucial for businesses whose target markets
are limited by taste or specialty.
90% of online shoppers
are influenced by online reviews.
Source
72% of online shoppers trust
online reviews as much as personal
recommendations.
Source

13
Getting It Right: Social Media for
Small Businesses
The good news? Social media doesn’t have to be hard, and you
don’t have to be perfect to reap benefits in the form of increased
customer engagement, expanded online reach, and improved
brand awareness. Here are three strategies I’ve found help make
social media more manageable for small-business owners:
• Limit the distractibility potential. It’s no secret that social media
can be a major time suck. Avoid wasting hours of your time by
using management software that lets you schedule posts ahead
of time. That way, you can take care of it once a week and move on.
• Ease into it. If you’re new to social media, don’t expect to figure
out every platform right away. Make one account at a time, get
used to that platform, and then add another.
• Integrate your social presence into the rest of your business.
It’s no good having a social media page nobody can find. Add
share buttons to your blog, website, and other web properties,
and update your email signature to include links to your social
media pages so people can interact with your business easily.
Rieva Lesonsky is CEO of GrowBiz Media, a media and
custom content company focusing on small business and
entrepreneurship. Email Rieva at rieva@smallbizdaily.com,
follow her on Google+ and Twitter.com/Rieva, and visit
her website, SmallBizDaily.com, to get the scoop on business
trends and sign up for Rieva’s free TrendCast reports.
Social media tip: start on one platform
and expand slowly.

14
What Counts As
Advertising Injury?
A Look at Slander, Libel,
Invasion of Privacy, and
Copyright Infringement
chapter 2

15
Chances are you’ve heard of slander, libel, invasion of privacy, and copyright infringement. You may even
have a general idea of what these terms mean. But what you may not realize is how easy it is to commit one
of these offenses when you use social media to market your small business.
Say, for example, you find a copyrighted image of a Pomeranian on Google and use it to generate “likes”
on your pet grooming business’s Facebook page. The creator of that image could sue you for copyright
infringement if you don’t have permission to use it.
The best way to prevent these small mistakes from becoming big legal battles is to be aware of what you
can and can’t do when it comes to publishing content online. Let’s take a look at the advertising injury risks
that could arise next time you write a tweet, post a status
update, or upload a Vine.
Slander and Libel
Both slander and libel are forms of defamation. The
difference is in the delivery. Libel refers to written
defamation that hurts someone’s professional reputation.
Slander refers to spoken defamatory statements that
damage someone’s professional reputation.
When using social media, you could commit either of
these offenses. For instance, any time you write a tweet
about someone else that could be reasonably construed
as negative, you risk being accused of libel. Create a Vine
where you say that a competing restaurant serves cat
meat instead of chicken, and that business could file a
slander claim against you.
A Look at Slander, Libel, Invasion of
Privacy, and Copyright Infringement
Chapter 2: What Counts as
Advertising Injury?

16
To be considered libel or slander by a court of law, though, a statement has to meet a few requirements:
• The statement must be false. Your best line of defense against slander and libel claims is often to prove
that your statement was either the truth or an obvious parody. But proving a statement true or false can
be hard. Let’s say, for example, that you tweeted, “We don’t support sweatshop labor, unlike [competing
business’s name].” Does that business actually contract with sweatshops? Is your statement just
hyperbole? Can your Twitter audience tell the difference? These questions will be at the heart of any libel
or slander case triggered by the post.
• The statement must be made publicly. If there isn’t an audience, there isn’t a libel or slander case.
That’s because these offenses hinge on whether or not the defamatory statement damaged someone’s
reputation. If people don’t know about the statement, the plaintiff can’t really argue that damage was
done. But if you post a derogatory statement to an audience of 10,000 Twitter followers, there’s a fair
chance that people read it and that it affected their opinions.
• The statement must have caused harm to someone’s professional reputation. To prove that their
reputation has suffered, the plaintiff could show a decrease in sales a week after your tweet went live.
They could also show that they lost their job, were demoted, were assaulted on the street, or received
hate mail after the statement was made publicly.
Without these three factors, it’s difficult to mount a successful libel or slander suit. Despite these hurdles,
though, it’s best to avoid making false statements on social media sites, which are considered public by
the courts.
Copyright Infringement
Copyright infringement refers to the use, distribution, display, or
derivation of copyrighted work without the creator’s
permission. Copyrighted work usually includes…
• Music.
• Art.
• Photography.
• Film.
• Writing.
In 2012, more than 8 copyright
infringement lawsuits were filed
each day. Source

17
So if you post someone else’s graphic design and claim it as your own on your business’s social media page,
you could be sued for damages. The exception would be if the image exists in the public domain (i.e., is
available to the whole public and is not subject to copyright laws).
For a copyright infringement claim to succeed in court, the following elements must be in play:
• The plaintiff holds a valid copyright on the work in question. This doesn’t necessarily mean that they
must have the copyright registered – just that they can verify that they are the creator of the work.
• The alleged infringer had access to the copyrighted material. If the work is available on the Internet,
this is easy enough to prove. The plaintiff’s attorneys would simply have to show the work could be found
on a website.
• The infringement doesn’t meet any copyright exceptions. “Fair use” is the most common copyright
exception. Fair use allows an unauthorized party to use someone’s copyrighted work in certain
circumstances. Examples of fair use may include commentary, criticism, parody, news reporting, research,
teaching, library archiving, and scholarship.
Before posting images that aren’t your own on your social media pages, make sure you aren’t violating any
copyright provisions! For more information on this topic, jump to Chapter 4: Copyright Laws & Social Media: A
Small Business Guide.
Third-Party Disclosure
Third parties can be held liable for the public disclosure of an individual’s private information without the
individual’s consent. That may seem like an easy situation to avoid, but a social media site’s terms of service
and privacy policy can blur the lines between legal and illegal disclosure.
Lane v. Facebook, a class-action lawsuit, is a good example of this. Back in 2011, Facebook’s Beacon program
updated users’ profiles when they shopped or visited websites that contracted with Facebook. The case
involved lead plaintiff Sean Lane, who had bought a ring for his wife on Overstock.com. Immediately, the
purchase was broadcast to his network of 700+ friends without his knowledge or approval.
The defendants argued that Facebook never asked for their permission to broadcast their “outside web
activities” across Facebook, which the defendants claimed violated various privacy rights statutes.
The judge remarked that the program caused users embarrassment and damages to employment, business,
or personal relationships, noting that many people shop online to increase their privacy. The case settled for
$9.5 million.

18
It’s a case worth heeding if your business acquires information about individual purchasing behaviors.
Unless you have explicit permission to broadcast the findings, keep them confidential.
Invasion of Privacy
“Invasion of privacy” refers to intrusion into someone’s personal life without just cause. Although the right
to privacy is not a First Amendment right – such as free speech – the legal definition of the right to privacy
has been evolving for the past 100 years. Currently, the term is defined as the right of a person “to withhold
himself and his property from public scrutiny if he so chooses.”
There are four types of privacy invasion claims:
• False light.
• Intrusion upon seclusion.
• Public disclosure of private facts.
• Misappropriation.
We go into more detail about each of these claims below.
False Light
Your small business can be sued for false light advertising if you portray someone as something they are not
(e.g., with a misleading caption under a photo). For instance, say you snap a picture of a person at an animal
rights rally and post it to your nonprofit dog rescue’s social media page. In the caption, you indicate that the
person was a protester. If that person was merely a bystander, they could sue you for negatively impacting
their reputation.
Unlike libel lawsuits, which deal with written defamation, false light claims don’t have to prove that the
person’s reputation suffered as a result of the post. They only need to show that the
statement would be offensive to a reasonable person – a caveat that gives these
cases considerable wiggle room when it comes to interpretation.
“The legal system recognizes
4 kinds of privacy invasion.”
Not all courts
consider social
media content
public.

19
Intrusion upon Seclusion
Think of intrusion upon seclusion as an intentional violation of someone’s private affairs, solitude, or
concerns. The litmus test for this offense is whether or not a reasonable person would be
offended by the alleged intrusion.
Though you may think anything you find on Facebook or Twitter is public knowledge, some courts disagree –
especially if the user took measures to limit their audience through privacy settings. So say the dietician clinic
you run is trying to find out about others’ weight struggles. Through your employees’ social media accounts,
you learn about their friends’ New Year’s resolutions, health complaints, and weight loss issues.
You use this information to reach out to a couple of people you stumbled across, to see if they want to
participate in a weight loss challenge. If they find out your business couldn’t have accessed this information
through its own social media page, you could be sued for breaking privacy rules. Your employees may be
held liable for the invasion, too.
Public Disclosure of Private Facts
Some facts are public information, while others are private. According to Wassom.com’s article “Common Law
Invasion of Privacy Claims in Social Media,” the Virginia Circuit Court of Richmond holds that information posted
on a public platform and available to anyone with Internet access is not private information.
Your business can run into trouble if it posts embarrassing, privileged, or confidential information about
another person on its social media page. For example, say you are a fitness instructor who is helping a client
lose weight. You name the client in a Facebook post to promote your services, citing that she lost 40 pounds
in two months.
However, since you didn’t get permission to disclose this information, she could sue you for publicly posting
about her private life and confidential health information. All her attorney would have to prove is that the
information wasn’t a public concern and that a reasonable person would find the disclosure offensive.
Misappropriation of Someone’s Name or Likeness
If you don’t have permission to use someone’s name, photograph, likeness, voice, or endorsement to
promote your services or products, you could be sued for invading their privacy if you use it anyway.

20
Let’s say you notice that a celebrity wore a necklace similar to the costume jewelry you create. If you use the
celebrity’s unauthorized picture on your Etsy shop’s page to help sell your designs, you could face a lawsuit
for implying that the celebrity endorses your company. The same goes for past clients, customers, and
models. You can’t post their pictures, testimonials, or names to promote your business unless you have
their consent.
Keep reading for a real-life example of a misappropriation lawsuit.
Case Study: A Celebrity Misappropriation Lawsuit
Actress Katherine Heigl of Grey’s Anatomy and Knocked Up fame is suing Duane Reade Inc. for using her
name and image to promote the New York based drug store chain without her consent. This is a classic case
of misappropriation, folks.
It all started when Duane Reade tweeted “Love a quick
#DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s
favorite drugstore” from its Twitter account. The tweet included a
paparazzi photo of Heigl carrying Duane Read shopping bags. The
tweet has since been removed from Twitter, but you can check out a
screenshot at left.
Heigl’s lawyers are arguing that the paparazzi photo depicts the
actress “in a private moment looking away from the camera” and,
because of this, “improperly exploited the plaintiff’s name and
likeness as a celebrity, for [the] defendant’s commercial advertising
and purposes of trade, without authorization.”
Citing her celebrity status, Heigl is demanding $6 million in damages
from Duane Reade. The actress has stated that she plans to donate
the judgment to the Jason Debus Heigl Foundation, which helps find
homes for dogs in need.
Sound ridiculous? Forbes offers its analysis of the situation via a guest
post by social media and business law expert Andrew Udin. Udin
suggests that while Heigl might not get the full $6 million, she has a legitimate case. He points out that…

21
• Celebrities still have rights. Udin explains that just because celebrities live their life in the public eye,
others do not have the right to exploit them.
• The post may have misled followers. Duane Reade has over two million Twitter followers and 100,000
Facebook “likes.” Udin suggests it’s likely that the tweet led some fans to believe that Heigl had some kind
of formal relationship with Duane Reade. Which leads us to…
• The post could have caused Heigl a loss. Udin points out that celebrities like Heigl can and do make
money for promoting various brands – they don’t work for free. And to further that thought: you can
imagine that if it was deemed “legal” for companies to use celebrities in advertisements for free and
without their permission, formal celebrity endorsement may no longer be in such high demand.
• It looks a lot like advertising. The Forbes article points out that Duane Reade will likely argue that the
tweet was not intended as “commercial advertising” and that no formal relationship was implied. But why
else use a celebrity photo if not to promote your brand in the hopes of generating more business?
• There is precedent. As Udin points out, there is a long history of celebrities filing misappropriation cases
against businesses – and winning. The article uses a Michael Jordan – Jewel-Osco case from 2009 as an
example. The grocery chain used a photo of Jordan in an ad congratulating him on his Basketball Hall of
Fame induction. Jordan sued and the courts sided with him.
As you can see, taking liberties with another person’s image, name, or words is
risky business. In the next sections, we talk about the common – and
sometimes costly – mistakes that small-business owners make when
using social media.
Always get permission before
posting a celebrity’s image.

22
Social Media Mistakes
That Cost Small Businesses Big
chapter 3

23
Small-business owners are flocking to social media sites to amplify their visibility and
generate leads. According to Manta (a social media site for small businesses),
nearly 50 percent of small businesses are investing more time in social media
than they were a year ago.
But Manta’s research also shows that 61 percent of small-business owners
report no visible return on investment from their social media efforts.
(For a full rundown of the findings, check out the infographic, “Manta Reveals
Small Businesses Find ROI in Social Media but Struggle with Facebook.”)
Missing the Mark: Common Small Business
Social Media Mistakes
So what are small businesses doing wrong? And what can they do to get their
social media marketing back on track? Read on for answers.
Social Media Mistake #1: Ignoring your online audience.
Simply creating a Facebook, Twitter, or LinkedIn account won’t get your business very far. Though social media
can help generate leads, it requires that you do more than just log in.
The only way to bring in business through social media is to spend time online listening to what people have
to say about the kinds of products or services businesses like yours offer. Are they complaining about their
current providers? Are they confused by a new product?
It takes time and patience to glean this information, but these cues tell you what matters to your prospective
customers.
Chapter 3: Social Media Mistakes
That Cost Small Businesses Big
50% of small businesses
invest more time on social
media than they did a
year ago. Source

24
Fix it: Log time on social media listening to your base. Use filters to sort out the content that could relate to
your expertise, and offer help when the opportunity arises. (Note: if you’re not doing this already, don’t feel
bad. Surveys show that a significant number of small-business owners have social media sites but do not use
them regularly – see the chart below)
Social Media Account Maintenance by Site
Sources: http://huxo.co.uk/blog/how-social-media-can-help-small-businesses-grow-infographic/,
http://www.mediabistro.com/alltwitter/small-biz-social-media-guide_b46480
Social Media Mistake #2: Only using social media to
announce sales and discounts.
Part of listening to your audience and making a connection means treating social media differently from
direct marketing vehicles. Instead of using your page like a bullhorn to announce your latest sale, you have to
engage with your audience.
Fix it: Share content your customers find valuable. For example, is one of your fans complaining about a
product they bought from you? View the grumbles as an opportunity to flex your customer service muscles
and offer a solution.
0
20%
10%
40%
30%
60%
50%
80%
70%
100%
90%
Facebook LinkedIn Twitter YouTube
SMBs That Have
an Account
SMBs That Use
Site “Regularly”

25
Another way to build support is to showcase your business’s personality. Direct marketing tactics don’t work
on user-generated sites because people don’t turn to social media to interact with companies. They are inter-
ested in connecting with people. But if you use social media profiles to humanize your business, you’re more
likely to generate an interested following.
Social Media Mistake #3: Expecting immediate ROI.
Social media marketing does not offer instant gratification for businesses. Its
value comes from its potential for building long-term customer relationships.
Manta’s study found that only eight percent of the small-business
owners polled are interested in using social media to build a community.
If your social media marketing strategy is going to work, connecting with
prospects and building relationships with them has to be your primary focus.
Fix it: Occasional half-hearted posts aren’t going to translate into immediate sales. But if you consistently post
engaging content and interact meaningfully with your audience, your social media efforts will eventually lead
to strong customer relationships, bigger orders, more frequent purchases, and loyal support from the
community you’ve built.
Social Media Mistake #4: Ignoring copyright considerations.
Just because you find an amusing photo on Flickr doesn’t mean you can post that image on your social media
page. That’s the lesson BuzzFeed is learning the hard way. The entertainment site found photographer
Kai Eiselein’s image on Flickr and published it in one of its lists without permission. Even though BuzzFeed
has since removed the photo, Eiselein is seeking $3.6 million in damages, claiming that the site infringed on
his intellectual property rights.
Your business could find itself in similar trouble if you violate copyrights. As a rule, creative work is the kind
most often protected under copyright laws. So if you reproduce, perform, distribute, publish, or display copy-
righted material (such as photographs, writing, or music) on your social media pages without permission, the
holder of its copyright could sue your business.
There are certain situations (known as “fair use”) that absolve your business of copyright infringement
liability. We’ll discuss that in more detail on page 33.
Only 39% of business owners see
positive ROI on social media.
Source

26
It’s worth noting that reproducing Internet memes for commercial use can also land your business in hot
water. Warner Brothers used the famous cat memes Nyan Cat and Keyboard Cat in its popular game
Scribblenauts, and the meme creators are suing for the infringement. You can read more about the case
in Forbes’s article, “Warner Brothers Sued For Infringing Cat Meme Copyright.”
Fix it: Get familiar with copyright basics and fair use exceptions. (You can start by checking out Chapter 4
of this guide.) Keep yourself in compliance by only posting your own work or buying a license to a stock
photo service.
Social Media Mistake #5: Committing libel.
You want to engage with your fans and followers on social media by sharing your personality, but some
thoughts should be kept private. For instance, say you’re upset about a never-satisfied client and post about
that person on Twitter.
But airing your grievances in the public eye can open you to libel charges. That’s what happened to a
freelance writer who was sued for more than $82k when she tweeted a libelous comment about one of her
clients. (Read the full story on the insureon blog.)
Fix it: Maintain separate accounts for personal and business use. If you’re not sure whether a comment could
count as libel, save it for a conversation with a close friend.
Social Media Mistake #6: Eavesdropping on your customers.
When companies keep tabs on social media for mentions of their brand, services, or products, it’s called
“social listening” or “social monitoring.” Netbase, a social analytics company, found that 42 percent of
businesses it surveyed considered social listening a priority in 2013. But the consumers it surveyed weren’t
wild about the idea of companies eavesdropping on their social media conversations.
The survey found…
• 32% of consumers weren’t aware that companies monitor social media mentions.
• 51% don’t want companies to listen when they’re being talked about on social media.
• 43% consider social media monitoring to be an invasion of their privacy.
• 64% are only interested in companies responding to social media comments when they are directly addressed.
(More results available in this infographic: Social Listening: Too Much Big Brother?)

27
Fix it: Remember that context is everything. Before responding to comments customers make about your
business online, consider the bigger picture and decide whether weighing in makes sense.
Another tactic: use the power of social monitoring to stay in the loop about what your
competitors are up to – 80 percent of small businesses admit to doing exactly that!
7 Steps to Take Today to Get the Most from
Instead of looking at social media as a way to perfect the art of
mindreading, think of it the same way you would a business networking
event. Mingle, get your information out there, but don’t linger too long if
others seem uninterested in what you have to say.
Here are some other pointers to keep in mind as you interact with prospects online:
1. Create a social media policy. Draft a document that outlines what you and your employees can post on
social media. Detail goals for social media accounts and strategies you’ll use to achieve those goals. This
will require an upfront time investment, but will save you time down the road making individual decisions
about whether or not to post items. For more information, jump to the “Create a Social Media Policy for
Your Small Business” section on page 55 of this guide.
2. Make a schedule for updating each of your social media accounts. Consider doing this with help from
one of the social media software platforms we mention on page 40. Once you have a schedule, you can
avoid the time and energy drain that deciding when to update pages can cause.
3. Don’t just listen. It’s not enough just to post content to social media. You must engage with your followers
and fans. Each interaction should deliver mutual value. For example, you can use social media for customer
service opportunities
4. Update account passwords. Make passwords strong and only share them with people in your business
who will be in charge of updating accounts. Add password update reminders to your social media calendar
at 60- to 90-day intervals.
Treat social media like a
networking event: introduce
yourself, mingle, and move on if
nobody’s interested in what you
have to say.

28
5. Identify an image source that won’t lead to copyright violations. Getty recently announced an option for
using its images free of charge. Other stock photo sites have reasonably priced packages that many small
businesses can fit into their budgets. Most people have camera-equipped smartphones. Whatever your
image strategy, make sure it keeps you out of danger of copyright violation.
6. Review your usage of customer data and change it if it’s too creepy. Include in your social media policy
document what is and is not an acceptable application of the information you gather from social listening /
monitoring.
7. Apply for General Liability Insurance. If you don’t already have a GL policy, apply for one to ensure that
your business is protected in the event that your posts trigger claims of libel or slander.
For a more in-depth look into managing social media risks, jump to “Chapter 7: Social Media Marketing Tips
for Small Business: Cut Your Advertising Injury Exposure.”

29
Copyright Laws & Social Media:
A Small Business Guide
chapter 4

30
When it comes to social media marketing, the goal is to amplify your visibility and connect with your target
audience. Social networking sites are prime places to get the word out about your business, given the size of
your potential audience:
Social Media Users by Site
Source: http://expandedramblings.com/index.php/resource-how-many-people-use-the-top-social-media/#.U0a5JPldX0E
But as you’ve read, these numbers don’t mean anything for your business if you don’t publish content and
engage fans and followers with your brand.
This is where social media gets tricky: to keep your audience’s interest, you have to stay active and
contribute content regularly. To avoid being sued over copyright infringement, though, you have to be
meticulous about what gets posted.
Say, for instance, you maintain a Pinterest profile for your wedding planning business. To help showcase
your company’s personality and style, you create boards with designer wedding dresses and wedding
photography. Since these images don’t belong to your business, could you be sued for infringing a copyright
owner’s intellectual property?
Let’s take a look at the basic tenets of copyright law and how they could be applied to the creative content
shared on social media sites.
Chapter 4: Copyright Laws & Social
Media: A Small Business Guide
0
200,000,000
400,000,000
600,000,000
800,000,000
1,000,000,000
1,200,000,000
1,400,000,000
Facebook Twitter Pinterest Google+LinkedIn Instagram

31
Copyright Laws: Read This before You Tweet, Pin, or Share
If you post content that isn’t yours on Facebook, Twitter, Pinterest, or other social media sites, you could be
liable for copyright infringement. That’s because copyright holders have exclusive rights to their work, and
in order to reproduce or publicly display their material, you have to have permission.
Remember, work governed by copyright laws includes…
• Music.
• Art.
• Photography.
• Film.
• Writing.
So that designer’s dress you pinned to your board? It could very well trigger a lawsuit if you didn’t have
permission. You can always ask the designer for permission, but that could get time-consuming if you
post daily.
Luckily, there are exceptions to copyright laws. They exist under a principle known as “fair use.”
Fair Use and Social Media
The Fair Use Doctrine allows people other than the copyright holder to reproduce copyrighted materials
for the purposes of…
• Criticism.
• Comment.
• News reporting.
• Teaching (including copies
for the classroom).
• Scholarship.
• Research.

32
The Four Pillars of Fair Use
To determine whether the reproduction of copyrighted material constitutes fair use, a judge evaluates the
use based on the following four criteria:
• Purpose and nature of the use. Fair use was designed to protect certain instances of copying someone
else’s work. For instance, if a teacher made copies of someone’s story to share with her class, the Fair
Use Doctrine would protect that instance of sharing copyrighted work without permission. The same goes
for criticism and parody, since these forms add a “transformative” layer to the original work. Use can be
considered transformative if your use adds a new layer of meaning, essence, or character to the original.
By simply posting content to social media sites, you aren’t adding anything to the piece. Instead, the
use was probably for aesthetic or entertainment value. By contrast, a search engine’s reproduction of
copyrighted images is transformative because it directs the user to online information.
• Nature of the work. Creative works enjoy more protection under copyright laws than educational or
functional works. If the work is unpublished, out of print, or confidential, the fair use defense may not
apply. So when determining your business’s liability in a copyright infringement case that stemmed from a
social media post, the court will take into account the kind of work you copied.
• Amount and substantiality of the used portion. If you reproduce a significant amount of the copyrighted
work without transforming the “essence” of the original, it will be harder to mount a successful fair use
defense. There’s no hard line here, which is why the courts take all four fair use factors into consideration.
• How the use affected the work’s market or value. It’s difficult to claim fair use when sharing or posting
someone’s copyrighted work online hurt the owner’s ability to market or sell their art. For instance, when
you post someone’s copyright-protected photo on social media, the widespread circulation of the image
might fill the demand for the work and make it difficult for the artist to sell prints.
For a clever example of fair use in action, check out the short video A Fair(y) Use Tale (Not a Disney Movie),
which uses brief clips from Disney movies to explain how fair use works – making the video itself, of course,
an example of fair use.

33
Fair Use or Foul Play? Mitigate Your Social Media
Copyright Infringement Risks
It’s up to the court to decide how much consideration each fair use factor receives. What one court may
find to be in fair use, another court may rule as copyright infringement. So instead of hoping that a fair use
defense will save you if you’re charged with copyright violations, follow these tips to minimize the risk of
facing a costly advertising liability lawsuit:
• Check for copyright notices before you post the image, video, or blog post. If you’re unsure how the
content can be used, ask the author. It’s always better to err on the side of caution and not post
something if you don’t have permission to use it.
• When you want to share copyrighted material that other social media users are circulating, read up on the
site’s terms of use. Many social networking platforms allow users to repost or retweet content on the site
if the owner uploaded it.
• Link to the original source of the work rather than uploading the work directly to your social media page.
Crediting the author for the work isn’t a defense against copyright infringement, but it can support a fair
use defense if your actions spark a complaint.

34
What Happens When You Violate Someone Else’s
Copyright on Your Social Media Page?
So let’s say you pinned that copyrighted image of a designer wedding dress even though you didn’t hold the
intellectual property rights. Here are a few potential outcomes:
• Nothing. The smaller your fan base, the less likely you are to suffer any consequences, even if you
blatantly break a copyright law.
• Legal contact. On the other hand, you could receive a cease-and-desist letter from a lawyer representing the
image’s copyright holder. In that case, you’d have to take the image down and possibly respond to the letter.
For that, you’d need the help of a lawyer, which means one thing: legal bills.
• A lawsuit. If your post is part of a larger trend of people misusing the copyrighted image in question, you
might be served with notice of an advertising injury lawsuit. This would require you to contact your
lawyer and your insurance provider.
You can learn more about copyright lawsuits by jumping to Chapter 6: The High Cost of Advertising Injury
Lawsuits.

35
Social Media Liabilities:
Your Employees, Fans, & Enemies
chapter 5

36
By now, you understand the risks associated with crafting your social media content. But they don’t call it
a “social” network for nothing. Anything your small business posts could reach thousands of people and
prompt responses from folks outside of your business.
That’s certainly a good thing so long as everything goes according to plan. But what about the instances
when an employee posts something you wish you could take back? Or a customer posts questionable
content on your page? Or worse, what about when someone else hacks into your business’s social media
account and poses as your business?
It’s times like these that a broader audience means you have to redouble your damage control efforts.
Though small business insurance can cover a number of social media missteps and cyber damages, it’s still
important to understand the risks you face every time you log in.
It makes sense to get your employees involved with your business’s social media marketing strategy. And
with 25 percent of small businesses noting that they spend six to 10 hours each week managing social media
accounts, you may have no choice but to get others involved. But where there is open communication and
a broad audience, there’s also the potential for PR meltdowns, unprofessional behavior, and advertising
injuries.
Even if you’re the only person who handles your company’s social media accounts, you can never be certain
that you won’t run into liabilities in more indirect ways. For example, if you write disparaging remarks about
your competition on your personal social media profile, there are some instances where your business could
be sued. Similarly, if your employee uses their personal profile to harass
other employees online, your business could be held responsible for
that behavior.
Chapter 5: Social Media Liabilities:
Your Employees, Fans, & Enemies
25% of small businesses spend
6 - 10 hrs/week on social media.

37
Source:: http://www.manta.com/press/pr/mantas-q1-smb-wellness-index-reveals-small-businesses-find-roi-in-social-
media-but-struggle-with-facebook/
Can You Be Held Accountable for What Others Say on Social Media?
Consider this scenario: you let an employee operate your business’s social media account. But at some point
during the day, someone comments on the company’s status, saying your business doesn’t hold a candle to
your competitor.
In a rush to defend your business’s honor, your employee dashes off a response that, upon reflection,
could be construed as libelous. The disparaging remarks are spread all over Facebook, and BuzzFeed even
compiles a list of screenshots of the most incriminating posts. By the end of the day, your company is caught
up in a viral, libelous scandal.
The worst part is that these public mistakes happen all too often, thanks to the accessibility of social
networks. At best, your company’s reputation could suffer from the faux pas. At worst, the competitor could
sue your business for libel.
Who Manages Social MediA at SMBs?
0
10%
20%
30%
40%
50%
60%
1 Person 2-5 People Everyone No One

38
The important thing to keep in mind is that you could be held liable for whatever happens on your business’s
social media account. This includes…
• Libelous posts written by your employees.
• False offers / inflammatory remarks posted by your former employees under your business’s account.
• Content that hackers post through your account (such as false claims about sales, promotions,
or other offerings).
• User-generated content (i.e., defamatory or obscene comments and posts).
You must be careful about what other users post on your business’s social media profile or in the comments
section of your blog. In some cases, people could bring suits and subpoenas against your business to pursue
the identity of defamatory commenters.
To avoid this potentially sticky legal situation, be sure to monitor, block, and remove defamatory or obscene
comments and posts as they occur.
Also, if a fan or follower posts trademarked content to your company’s page, your business could be held
responsible for the trademark violation if that person didn’t have consent to use it. Be sure to remove such
posts in order to demonstrate a good-faith effort to prevent and manage trademark infringement.
Personal Accounts and Social Media Lawsuits
When your employees use social media for personal use, your business could still be on the line for the
damages they cause. For example, say your employee uses a personal Twitter account to sound off about a
competitor. Even if they anonymously disparage a brand or company online, there’s always the chance that
they will be discovered as your company’s employee. And that commercial entity could decide to sue your
business for the defamation your employee caused.
The risks aren’t limited to libel claims.
During the 2012 presidential election, an employee of Cold Stone Creamery tweeted racially inflammatory
comments about President Obama’s reelection. While the tweets were on her personal account, the story
went viral and Cold Stone was mentioned over and over as her employer, tainting the ice cream store by
association. The woman was fired shortly after the incident.

39
And a ding to your reputation isn’t the worst that can happen when your employees take to social media.
The case of Espinoza v. County of Orange involved an employer who didn’t intervene when employees cyber-
harassed a colleague in the comments section of a blog – outside work hours. The harassed employee
reported the online incident, and the supervisor failed to take action against the perpetrators, asserting
that it wasn’t the company’s responsibility.
But the courts disagreed, handing down $1.6 million verdict against the business, which was upheld by
an appeals court. The case illustrates how an online situation that happens after regular work hours on
personal accounts can still become your business’s legal and financial responsibility.
Increase Productivity and Keep Your Business Protected
Social media can be an effective marketing tool, but it can also be a big distraction
and waste of company time and resources. In fact, a survey conducted by Network
Solutions and the University of Maryland’s Robert H. Smith School of Business
found that 56 percent of small-business owners find that social media
management takes more time than they expected.
Time SMBs Spend on Social Media
Source:: https://www.networksolutions.com/smallbusiness/wp-content/files/State_of _Small_Business_Report_Wave_5.pdf
56% of small business owners say
social media takes more time than
they expected. Source
0
5%
10%
15%
20%
25%
30%
LinkedIn Facebook Twitter Blogs Location-
Based sites
Daily Updates
2-3 Updates /
Week

40
One way you can save money, boost productivity, and minimize the potential for employee social media
blunders is to automate your social marketing efforts. Automating lets you build relationships strategically
without dithering valuable time. Here are a couple services that can help:
• HootSuite. HootSuite provides your business with a single social media management dashboard so you can
simplify and automate your marketing campaigns. You can schedule tweets or posts, analyze social media
traffic, track conversions, measure campaign results, and track metrics (e.g., top content, likes and shares,
and follower demographics).
• WebiMax. Use WebiMax if you don’t have much social media experience or time to spend learning the
ropes. This service can create and maintain custom campaigns that are tailored to your business and its
target audience. It can create and manage marketing campaigns on Facebook, Twitter, Google+, LinkedIn,
YouTube, Pinterest, Instagram, and other social networks.
• LocalVox. LocalVox is designed for small local businesses. It’s a social and mobile marketing platform
that drives in-store sales through mobile websites, email marketing, PR campaigns, advertising, and local
directories. The service can also manage your reputation on sites like Yelp, Superpages, and CitySearch.
Of course, there’s always the chance that your business would do well to outsource your social media
efforts. You can learn more about this option in by reading, “Is It Time to Hire a Social Media Professional?”
on page 43 of this guide.
Social Media Hacks and the Threat of Data Breaches
Did you know that cyber criminals can use social media pages to hack into people’s computers and steal
their information? If your business uses social media, it is as much at risk for falling for a hacker’s ploy as the
general population. Social media hacking takes several shapes:
• Social engineering. Because social media is based off interaction, some cyber criminals will pose as fans
– or even colleagues – in an attempt to lull you into a false sense of security. Their goal? That you divulge
sensitive information that will allow them access to your network. It’s kind of like a spam email that asks
you to wire money to a stranger overseas – except it’s usually not so easy to spot. The hacker uses
advanced psychological techniques to gain your trust, and that’s why they call it “social engineering.”

41
• Credential theft. Some cyber criminals try to gain access to social media accounts by figuring out your
login information. Hackers know that many people use common passwords, and so they can target certain
social media channels and try these passwords until they find accounts that use them. In fact, a single
hack in 2013 compromised a total of 2 million accounts on Google, Yahoo!, Twitter, and Facebook in this
way. Once a hacker gains access to your account, the consequences are endless. Perhaps they may start
sending defamatory tweets to your followers. Or maybe they will pose as your business and try to trick
your fans into handing over their sensitive information.
• Malware. Social media is all about swapping content. You’re likely familiar with the heartwarming (or
tear-jerking) photos and stories that go “viral” on Facebook pages. But did you know that cyber criminals
can use those sharable stories to trick you into clicking a link that installs malware on your device?
Malware can allow a hacker access to the affected device’s network – and your business’s confidential
information.
Though it may seem unlikely that a hacker would take over your business’s social media account just to stir
up a little chaos, it’s not unheard of. And if they post false claims about sales or promotions, you may be
responsible for following through on those promises.
To read how you can mitigate these risks, jump to the “Mitigate the Risk of Social Media Hacks” section on
page 57 of this guide.
In 2013, one hack compromised 2 million
accounts on Google, Yahoo!, and Facebook.
Source

42
Did you know that 23% of consumers
use social media to interact with
brands and 90% of the most affluent
consumers use social media? Social
media is also prevalent in business-
to-business (B2B) marketing with 93%
of companies reporting successful out-
comes when placing content across
an average of seven different social
media platforms. Not so long ago, the
question many small businesses had
was whether they truly needed to
have a website or not. Today, not only
is a website important, but having a
voice across multiple online platforms is critical if you plan
to build your company brand, increase sales, and remain
competitive.
Today’s customers want information on their own terms,
often completing 57% of the purchase decision before even
contacting a potential supplier. Their time is limited, they’re
juggling multiple priorities, and there are many competing
demands for their attention.
Sound familiar?
As a business owner or marketing manager, can you relate
to having limited time, juggling priorities, and wrestling with
competing demands? Do you have the skills and bandwidth
to develop, implement, and manage a productive social me-
dia strategy? While I am a firm believer that most business
skills can be learned, the issue about whether to take on a
new skill or not centers around return on investment (ROI).
The purpose of this guide is to help you to determine if and
when it makes sense to hire a social media professional and
how to go about it so that you realize the greatest return on
your investment of time, money, and talents.
To Delegate or Not to Delegate?
Social media is personal.
Unlike a product brochure or company website, social media
is about social networking. It is about talking to your custom-
ers in a way that is informative, educational, and trustwor-
thy. As a business owner or manager, you are certainly in a
position to be well-informed and knowledgeable about your
company’s offerings. But are you engaging? Do you have the
time and talent to develop compelling content?
Social networking is about engagement marketing. Engage-
ment marketing takes time – time to learn the various social
media platform options, time to determine which platforms
best reach your target audience, and time to develop the
right content to engage and attain your business objectives.
Here are some further thoughts to help you judge whether
managing your social media is something you should handle
yourself or delegate to specialized talent:
Social Media: Getting it Right
in Small Businesses
By Deborah Osgood,
award-winning
founder of the
Knowledge Institute
for Small Business
Development (KISBD)
23% of consumers use social
media to interact with brands.
Source

43
• You love marketing and are good at it. Marketing com-
munications is your job. You’re well trained and you have the
time, talent, and capacity to surf the Web, stay on top of
trends in your industry and productively engage your target
audience. Read no more. No need to consider delegating
until demands exceed capacity. You are in an enviable posi-
tion compared to most business owners and managers today!
• You recognize the need yet lack the budget to hire social
media talent. Fear not. One of the upsides of social media
is that it is always changing. Anyone who claims to be an
expert today must also be continually learning to remain
an expert tomorrow. With a little bit of time and talent
on your part, you can establish a productive social media
presence by selecting two or three social media platforms
to focus on. By learning each platform well, publishing
content often and monitoring engagement, you will be
able to be in the game in a way that returns tangible
benefits. When you begin to reap the benefits of your hard
work in your bottom line, you can begin to consider out-
sourcing or employing part-time social media talent.
• You have a solid grasp of your marketing strategy
and no time to learn or take on a new responsibility.
Surprising as it may be, having a solid marketing strategy
in place is not as common in business as it should be. The
fact that you do suggests that you also have a strong grasp
of your overall business strategy and how marketing fits
into it. With quantifiable objectives and a means for
measuring progress over time, you are in a great position
to define your social media objectives, secure social media
talent, and implement a compensation
program that is aligned to results.
• Your business is growing and your customers are actively
engaged and digitally savvy. You likely already have social
media talent on your team in some capacity and are
reaping the rewards! You’re staying on top of content
marketing trends and influencer marketing strategies,
which are helping you to manage your social media activi-
ties to yield the optimum return on investment. Delegating
under these conditions is more about knowing when to
expand social media activities and the social media team.
What to Look for in
Social Media Talent
Whether you have social media talent already in place or
expect to be looking soon, it is essential to know what your
business objectives are. The more quantitative and explicit
you can be about your objectives, the easier it will be to
recruit the right talent and measure ROI over time. While
specific qualifications will vary based on what you sell, your
business culture, and your industry, certain common attrib-
utes include…
• Marketing experience. In order to be effective in social
media, a candidate must have a solid grasp of business
marketing. This includes the traditional 4 Ps; product
(or service), place, price, and promotion, as well as
contemporary inbound marketing strategies. It would be a
significant waste of time and resources to employ a person
who may know how to write and publish content, but not
understand how it fits into the total business strategy in a
way that serves business objectives. Success in marketing
is all about the right content in the right context.
Look for a social media
hire with a robust personal
presence on social sites.

44
• Social media experience. Because you are paying for
talent that you yourself lack the time, skills and/or desire
to perform, you want be sure that you hire someone who
possesses more knowledge, experience, and capacity to
continually learn than you do. This includes proficiency in
using multiple social media platforms, researching and
staying on top of industry trends, developing compelling
content and tracking, and reporting on performance
metrics and outcomes.
• Social media presence. What is the candidate’s personal
presence on social media? How and where they engage
and how often they post will tell you a lot about whether
they will fit with your business culture and how well they
will fulfill your social media objectives.
• Industry perspective. As part of the interviewing process,
invite candidates to submit a brief overview of how he
or she would go about improving your social media
presence. This is a great way to learn whether they’ve
done their homework about your business and how well
they will align what they know with what you need.
Further attributes include experience working with a com-
pany that is similar in size, industry, and culture. Regardless
of these factors, however, experienced marketing profession-
als are likely to possess the agility and capacity to learn and
adapt basic marketing principles to your specific business
objectives.
What to Measure for ROI
Measuring return on investment from social media activi-
ties can be tricky. While the ultimate goal of any marketing
strategy is to increase sales, social media marketing benefits
emphasize increased brand awareness. Most social me-
dia platforms include rules against hard sales tactics and
self-promotion. This includes affiliate marketing strategies,
hypertext links to sales offers, and related promotional
content. Anyone abusing the rules can get blacklisted and
suffer additional negative comments across multiple social
networking platforms.
Instead, posting, liking, favoriting, and sharing center around
users expressing self-interest in value-add information and
learning. While a Vision Critical study published in 2013
found that 40% of consumers purchased an item after
“liking” or “favoriting” it, the capacity to align the like or
favorite action with a specific consumer purchase action
isn’t always possible. Therefore, if you’re looking to routinely
measure a direct relationship between social media engage-
ment and a sale, you may be disappointed.
Even the most effective social media campaigns may not
show immediate results. When you do start to see positive
outcomes, they are typically in the form of users choosing
to follow, connect, share, like, and comment on your social
media posts. In most instances, these activities lead to your
content being shared through their social media channels as
well. This form of referral marketing can be incredibly power-
ful as it is based on trust and typically reaches prospects that
would otherwise never hear about you or your offerings.
Still, when someone chooses to buy from you, you may
never be able to trace the sale back to a specific social media
platform or post.
For these reasons, it is important to be realistic when defin-
ing what it is that you are going to track and measure as
social media ROI. Useful quantifiers include the total number
of times users choose to connect, follow, share, and like
your content over time. Decide what is important and set
milestones. The law of manifestation states that what you
track expands.
Even great social media campaigns
may not show ROI right away.

45
Why It’s Important to Schedule
Time to Reassess
Change is inevitable. Change is also rapid in business, partic-
ularly during uncertain economic times. In order to maintain
a productive social media strategy, you will want to...
1. Be strategic. Look ahead. Stay on top of what’s going
on in your industry, with contemporary marketing
strategies, and with your customers. This includes
knowing what your competition is doing to reach
customers.
2. Be smart. Do you have the budget and capacity to truly
take advantage of the benefits that social media has to
offer? Do you have the right social media talent working
for you? Having a solid overall marketing strategy, a
detailed job description when using in-house talent,
a comprehensive contract when outsourcing, and a
reliable tracking and reporting mechanism are just some
of the wise practices to have in place to ensure ROI.
3. Routinely reassess. Set benchmarks, milestones,
and deadlines across all parameters. This includes
performance assessments of your social media team,
evaluating outcomes, refining your plan, and reallocating
resources when necessary.
When to Celebrate Progress
Enthusiasm is infectious. As the number of user activity in-
creases across your social media platforms, share it with eve-
ryone – your customers, your website visitors, your suppliers,
your internal team, and particularly your investors. The very
fact that people are choosing to take the time and make the
time to engage with you through myriad social networking
venues is to be celebrated.
It is a busy world out there! You’re doing something right
when your engagement marketing is truly engaging.
I’m a firm believer that most business skills are teachable
and learnable, even to those who don’t consider themselves
inherently “entrepreneurial.” Managing social media is no
different from the other skills required to run a business.
However, as with any skill a business owner must juggle,
there comes a time when it makes more sense to pay some-
one else to do it for you.
This guide will help you recognize when it’s time to hire a
social media professional and how to do it so you realize
the greatest return on
your investment.
Dr. Deborah Osgood is the creator and chief architect of numerous
innovative learning systems and virtual resource communities, and a
pioneer in leveraging entrepreneurial development systems to launch
a dropout prevention program for middle- and high-school students.
Her combined expertise in entrepreneurship and positive human
development has helped thousands of individuals of all ages to
discover their unique purpose and implement a strategy for fulfilling
it through career and small business pursuits.
Stay ahead of change by reassessing
your strategy often.

46
The High Cost of
Advertising Industry
Lawsuits
chapter 6

47
Given the popularity of social media and its widespread use, it’s no wonder courts are still trying to
figure out how existing laws apply to the new technology. But while the law tries to keep up, social media
continues to give rise to copyright, trademark, defamation, and privacy disputes.
From celebrities all the way to freelancers, anyone can face a dreaded Twitter libel (aka “twibel”) lawsuit.
Courtney Love barely dodged a hefty defamation claim, and, as we mentioned earlier, a British transcriber’s tweet
nearly cost her $82,630.
These cases only scratch the surface of the many violations your business could be accused of for its social
media posts. You could be sued for copyright or trademark infringement if you post someone else’s work
improperly. A trademark infringement case that goes to trial can cost $150,000 to $250,000 in attorneys’
fees alone.
Advertising injury lawsuits contribute to the $105.4 billion small businesses pay – in a single year – for
expenses related to lawsuits, according to a 2010 study conducted by the U.S. Chamber of
Commerce’s Institute for Legal Reform. Not to mention…
• Small-business owners paid $35.6 billion out of pocket (i.e., insurance didn’t cover
that amount).
• Of all the business tort liability costs that year, small businesses carried
81 percent of the expenses.
You can read USChamber.com’s press release, “Lawsuits Cost Small
Businesses $105 Billion, Study Shows,” for more details. But the moral of the story is this:
lawsuits are no small matter for small businesses. Even when a tort is ultimately
dismissed, your business bears the cost of hiring an attorney and has to
deal with lost business income for the days you take off work to meet
with your counsel and appear in court.
So how much can a lawsuit over a social media slip-up cost your
business? Let’s take a look at social media user Beth York’s case
to illustrate how a claim can financially burden your business.
Chapter 6: The High Cost of
Advertising Injury Lawsuits
Attorneys’ fees for a trademark
infringement case: $150k - $250k
In 2010, small-business
owners paid $35.6 billion out of
pocket for lawsuits.
Source

48
Advertising Injury Lawsuits: A Social Media Case Study
The Columbia Daily Herald’s article “Woman Asks for Dismissal of Facebook Defamation Suit” tells the story of Beth
York, a woman caught in the crosshairs of a libel suit that started on Facebook. A developer named Donnie
Cameron is suing York for the comments she made on the “I Heart Spring Hill (TN, y’all)” Facebook page.
Cameron alleges that the comments damaged his reputation and professional life.
York’s attorneys filed a motion to dismiss the case on the grounds that it doesn’t meet the legal standards
for libel. They argued that her comments were not false or defamatory. The motion also argues that
Cameron’s lawyers haven’t proven how the statements hurt his business dealings.
The Facebook “Libel” That Landed York in Hot Water
Between March 14 and April 4, 2013, York apparently made the following Facebook posts about Cameron:
• “He’s a criminal who may or may not be involved in mafia-type underworld illegal gambling. Scary!”
• “We’re talking about a guy who can no longer contribute or be a booster for UT Athletics I believe b/c he
was so crooked. What exactly do you have to do to get banned from giving money to a huge money-
driven athletic program?”
• “One wonders whether progress and common sense has been held up by our ‘illustrious mayor’ or Donnie
Cameron (or both). Why would these candidates align themselves with such a guy who’s been
incarcerated for 6 mos. on at least one occasion and doesn’t even live in our city?”
In response to the posts, Cameron filed a lawsuit against York, alleging
that she had committed defamation and libel, tortious interference with
business relations, and false light invasion of privacy. He’s demanding
$250,000 in damages.

49
Contingency fees range from 25% -
40% of a court-ordered award.
York responded to the claim by denying that the posts defamed Cameron. She requested that the case be
dismissed because Cameron does indeed have a criminal history dating back to 1991. He was convicted for
illegal gambling relating to video poker machines he owned and handed a 10-month sentence to be split
between federal prison and a halfway house.
And York was right about UT, too. Turns out, University of Tennessee officials distanced themselves from
Cameron for improperly contacting a men’s basketball signee.
The fate of the case has yet to be determined. But one thing is certain: the lawsuit is probably a financial
burden York wasn’t expecting when she voiced her opinion on Facebook in the spring of last year. And if a
private citizen could be sued for defamatory remarks, a small business that makes the same mistake could
easily face a similar legal entanglement.
The Cost of Hiring an Attorney
If a case against your small business is dropped, you’ll still be responsible for paying attorneys’ fees. And
even though a judgment or settlement could cost millions, legal expenses alone can easily set you back
thousands of dollars.
To give you an idea of the cost of retaining legal counsel, let’s look at some financial projections for
attorneys’ expenses.
Contingency Fees and Retainers
Typically, attorneys are paid through contingency fees, which range from 25 to 40 percent of a settlement or
court-ordered award, or hourly rates. The beauty of charging contingency fees is that they tend to weed out
meritless cases from the start. After all, the attorney will only be paid if the case is strong enough to go to
court or warrant a settlement.
Typically, personal injury lawyers receive 33 percent of any settlement. So for example, if
your business settles out of court and agrees to pay $30,000 for damages, the
plaintiff’s lawyer would receive $10,000.
If you’re a defendant, your attorney will likely ask for a retainer fee up
front, which is essentially an advance on the case’s expected fees
and costs. The retainer fee can be as little as several hundred dollars
or as much as tens of thousands. It all depends on the claim and a
case’s projected expenses.

50
Attorneys’ Fees for Defendants in Advertising Injury Cases
When you’re sued and you lose, it’s your responsibility to pay your legal defense fees – but in many cases,
you’ll also have to pay for the plaintiff’s legal representation.
After the lawsuit is over, if you’re held liable for advertising injuries, the plaintiff’s attorneys will file an
application for their fees with the court. The application will include time records and an affidavit that
justifies their hourly rate.
Meanwhile, your lawyer will try to whittle down this amount as much as possible. They may argue that the
hourly rate is too high or that the case was only partially successful. The judge will ultimately decide the final
fee amount, and you will be responsible for paying it.
If you have the appropriate small business insurance – in social media advertising injury cases, General Liability
Insurance – you won’t have to pay these costs out of pocket.
Costs and Expenses in Advertising Injury Cases
In addition to legal defense costs, advertising injury cases come with other fees. Some attorneys cover these
costs and deduct them from the settlement amount. Others bill clients for the costs as they arise.
In an advertising injury case, related court costs may include…
• Medical records.
• Police reports.
• Expert witness fees.
• Postage.
• Filing fees.
• Investigators.
• Depositions.
• Trial exhibits.

51
These expenses alone can be a few thousand dollars. But again, with adequate GL coverage, your insurance
company can pay for attorney’s fees, settlements or judgments, and related court costs.
Dealing with Frivolous Advertising Injury Lawsuits
It’s no secret that civil torts drain profits from small-business owners, drive up
the cost of products and services, and burden the nation’s judicial system. In
2010, tort costs soared to $264 billion – roughly $857 per person, according
to the report “2011 Update on U.S. Tort Cost Trends” by risk management firm
Towers Watson.
The bad news is that even a meritless lawsuit can hit your business in the
pocketbook. For example, say a competitor sues your business for something
you posted about it on Twitter. Even if the tweet doesn’t amount to libel
or false-light invasion of privacy, the tort can still rack up lawyers’
fees and time away from your business.
In fact, the National Federation of Independent Business reports
that U.S. small-business owners pay an estimated $35.6 billion just
to settle civil suits – and 95 percent of small-business owners settle
out of court when faced with a claim. (Read more in NFIB.com’s article,
“How to Handle Frivolous Claims.”)
Given the rise in social media libel, copyright infringement, and invasion of privacy cases over the past few
years, it’s worth learning more about frivolous litigation so you know what to expect.
Social Media Defamation, or Grasping at Straws:
The Example of the $50k Tweet
In the case Horizon Group v. Bonnen, Horizon Group Management LLC filed a lawsuit against Amanda Bonnen,
a 25-year-old renter in one of its buildings, for venting on her Twitter account about the conditions of her
apartment.
According to the realty group, Bonnen damaged its professional reputation when she tweeted, “Who said
sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.” Horizon sought $50,000
in damages.
In 2010, torts cost the U.S.
$857 per person.
Source
American small-business
owners pay $35.6 billion each
year to settle suits.
Source

52
Bonnen’s attorneys successfully argued that her statement’s literary and social context mattered in whether
or not it should be considered factual. They noted that since Bonnen only speculates what Horizon thinks,
her tweet should be viewed as a personal opinion rather than a statement of fact. Since she didn’t mention
where she lives or whether or not she actually lives in property managed by Horizon, the tweet lacked the
factual content to effectively damage the landlord’s reputation.
And the judge agreed, saying that the tweet was “really too vague” and “lacks any context” to meet the
legal standards for libel. The case was dismissed.
Even if the claim never made it to trial, fighting a frivolous advertising injury lawsuit can still cost a
considerable amount. To respond to a claim like the one Bonnen faced, your business would have to hire
a lawyer and pay that lawyer to respond to the charges and make preparations for trial. For most small-
business owners, those legal defense fees alone can be enough to strain a bank account.
What to Do When You’re Sued for Social Media Advertising Injuries
There’s no magical way to prevent your business from being sued for frivolous reasons. Sometimes people
sue to send a message; other times, they’re trying to force your hand and make a quick buck. But if you
respond to a claim with a strong counterclaim or defense, you increase your chances of having the meritless
suit dropped.
Those who pursue unreasonable suits are typically fighting a war of attrition. The idea is to drag out the
lawsuit long enough to make the situation financially burdensome enough that you’ll be willing to settle just
to end it.
When faced with a meritless claim (e.g., a complaint that you committed libel on Facebook even though
what you wrote was factually true and didn’t hurt the person’s reputation), remember to…
• Answer the complaint swiftly. Your answer should outline all possible defenses and counterclaims.
• Be quick about handling all the proceedings to prevent the claim from dragging out longer than it has to.
• Ask your attorney about the possibility of bringing summary proceedings, which can speed up the process
if your case requires prompt action and only involves a small number of clear-cut issues.
Before a lawsuit even becomes an issue, though, you’ll want to arm yourself with the appropriate financial
tools to pay for your legal defense costs and other expenses if the claim goes to trial or is settled out of
court. We discuss General Liability Insurance, advertising injury coverage, and other risk mitigating tips in
the next chapter.

53
Tips for Small Business:
Cut Your Advertising Injury Exposure
chapter 7

54
Chapter 7: Social Media Marketing
Tips for Small Business: Cut Your
Advertising Injury Exposure
When you want to generate leads, connect with prospective customers and clients, and reinforce your
brand’s identity, marketing through social media is an effective and low-cost route (see chart). But as we
discussed earlier, you run the risk of being sued for a number of advertising missteps if you’re not careful.
What do smbs spend on social media?
Sources: https://www.networksolutions.com/smallbusiness/wp-content/files/State_of _Small_Business_Report_Wave_5.
pdf and http://www.mediabistro.com/alltwitter/small-biz-social_b39760#more-39760
So how can you reap the benefits of social network marketing without these pesky liabilities threatening
your bottom line? Take these tips to heart when mapping out your strategy.
0
10%
20%
30%
40%
50%
5%
15%
25%
35%
45%
$0 $1 - $100 $101 -
$250
$251 -
$500
$501 -
$1,000
$1,001 -
$5,000
Don’t
Know
$5,000+

55
Tips for Reducing Social Media Marketing Risks
When building out your social media marketing plan, remember that advertising injuries can arise from
posts on your small business’s profile, your personal profile, or your employees’ profiles under the right
circumstances. Your best line of defense is to understand your risks and proceed with caution. Below are
some ideas that can help mitigate your risks and ensure your business thrives online.
Create a Social Media Policy for Your Small Business
Though some small business insurance policies can safeguard your business against an array of social media
legal entanglements, it’s best to avoid a fiasco in the first place.
You may consider creating a social media policy to help keep everyone on the same page – especially if a
handful of employees manage your small business’s online presence. Your social media policy should outline
what is and is not acceptable to publish online. That way, if someone breaches the policy, you can make a
case for your business.
Your social media policy should include…
• An outline of what is and isn’t acceptable to publish online.
• Definitions and examples of social media violations, such as libel, slander, copyright infringement, privacy
invasion / harassment, and misappropriation of someone’s image.
• An explanation of what professional online behavior entails.
• A ban on comments about the company or its employees that don’t represent its values, even if employees
are posting via their private social media accounts after work hours.
• A prohibition of defamatory posts about your company.
Consider incorporating your social media policy into your
employees’ training to ensure they understand the material.
And remember, if your staff networks on sites like LinkedIn
under your company’s name, those connections could belong
to the business. Be sure to clarify this issue in your business’s
policy.

56
When in Doubt, Ask for Permission
It’s easy to forget that all’s not fair in love and social media. If you post someone else’s photos on your
business’s profile, you run the risk of copyright infringement or misappropriation claims. That’s why you
should always get permission from the copyright holder or the individual before you use or post…
• A photo, article, or other work that may be copyright-protected.
• An image of someone else.
• Someone else’s name or words (e.g., a client’s testimonial).
In other words, if you can’t (or don’t want to) get the permission to use certain brand names, slogans,
images, or blogs, don’t post them to your social media page. The same goes for content revolving around
your customers – if you can’t get permission to use a name, image, or likeness, don’t post it to
social media!
Think Before You Tweet
It’s true – what you publish on Twitter, Facebook, or any other social media site can result in a libel
or slander claim against your business, so long as what you said was false and damaged the person’s
reputation. Avoid these allegations by…
• Proofreading each post before it’s made public.
• Not writing or saying untrue things about another person in a public space.
• Fact checking.
• Handling inflammatory remarks aimed at your business in a professional, respectful manner.
• Never publishing something that could be misconstrued as defamatory or derogatory.
• Never publishing someone else’s private information.
• Assuming everything you post online is public.
When in doubt about whether a post is offensive or not, err on the side of caution and keep it to yourself.
Remember, there’s no hiding from online indiscretions. Usually before you can hit the “delete” button on a
post or tweet, at least a dozen people have already seen it. While you promote your business’s products or
services on social media sites, keep in mind that everything you do or say online will become public. That
way, you’ll be encouraged to only show the best side of your company.

57
Mitigate the Risk of Social Media Hacks
Though social media hacks and mistakes can lead to revenue losses and costly lawsuits, your business can
take steps to minimize its chances of facing these events. After all, the Ponemon Institute’s 2013 Cost of a Data
Breach Report found that 35 percent of data breaches are caused by human error and another 29 percent by
system glitches. Consider the following tips to keep your business out of harm’s way on social networking
sites:
• Create and enforce a social media policy. Tailor your plan to your company’s specific needs, its social
media accounts, and its risks. Be sure you train your employees on the policy so they understand what
they can and can’t do online. Social media platforms change quickly, so be sure your policy is always up to
date to reflect these changes and emerging sites. (For a refresher on what makes a good social media
policy, jump back to the “Create a Social Media Policy for Your Small Business” section of this eBook.)
• Carry insurance coverages that indemnify and defend your business. When your business is dragged
into court by someone who claims you committed libel or falsely advertised, the costs can add up quickly.
You’d have to take time off to appear in court, retain an attorney, and potentially pay a considerable
amount in settlement fees. Fortunately, adequate insurance protection can pay for your legal costs when
you are the target of a social media-related claim. For example, a General Liability (GL) policy can step in
to cover advertising injury claims arising from slander, libel, privacy invasion, copyright infringement,
and misappropriation.
• Promptly respond to cyber breaches. If you notice that your social media account has been hacked,
notify the appropriate platform administrators immediately. For example, Facebook has a “Hacked
Accounts” page that walks you through the steps to take when your profile has been compromised.
The bottom line: Safeguarding your business against social media hacks and reputation-damaging posts
can only go so far in helping you to be proactive and prepared. Only a comprehensive risk management
approach is sure to maximize your recovery and offset potential losses.

58
How to Use Customer Photos Online – Legally
Small-business owners are wise to tap into the power of customer-generated social media photos. By
encouraging followers and fans to use your business’s hashtag when they post pictures of themselves
sporting your products, you create an organic marketing tool. With the hashtag in place, you can filter
thousands of customer photos on Instagram or Twitter. And with a re-gram or retweet of the image, you
connect with customers and create grassroots social media advertising.
It seems like a win-win. Your customers feel as though they are engaging with your brand in a meaningful
way, their photo generates attention, and your business receives free content to market its products. But
as with everything online, using customer photos also comes with risks.
If you use a customer’s photo outside of the social media site you found it on, you could be sued for
copyright infringement or misappropriation of their image.
Small business insurance can cover the costs of a misappropriation or copyright infringement lawsuit (including
settlement or judgment costs and legal defense fees), but it doesn’t give you carte blanche to be careless.
It’s better to know what you can and can’t do with your customers’ photos so you can avoid a legal disaster.
Here are some tips for using customer-submitted images.
Social Media Marketing: What’s in a Hashtag?
A hashtag is a form of metadata that signifies specific keywords or topics. When users caption their photos
with a hashtag, they appear in an archive of other images or posts with the same tag. Users can filter and
find photographs easily in a sea of competing content.
Businesses have started to use customers’ photos of their products in websites and advertising campaigns.
Some retailers have even stated that when someone uses their brand’s hashtag to caption the photo, that
tag gives the business license to use the picture as it sees fit. However, this kind of disclaimer likely wouldn’t
hold water in court. That’s because the person who took the photo still holds the copyright and publicity
rights to it, regardless of the hashtag used.

59
The Risks Your Small Business Faces When It Uses Customer Photos
Your customers hold the copyrights to their photographs, even if those photos are
posted publicly on social media. Twitter and Instagram can display their users’ images
on their sites because their policies grant them a non-exclusive license to the
content. But other businesses that use these sites don’t have the same
benefit. The most they can do legally is retweet or re-gram the photo on
the respective networking site.
Regardless of the caption used, your business could run into legal
issues if you take a customer’s photo and use it elsewhere, such as on
your website, in press releases, or in print advertisements. That’s because
individuals retain copyrights to their pictures and have enforceable publicity
right, which means…
• If you profit from someone else’s photo, you may owe a portion of your revenue to the copyright holder.
• If you use someone’s unauthorized image, you could be liable for privacy intrusion, even if the users
voluntarily posted photos of themselves knowing that the images might be used to promote your brand.
Courts in California ruled that individuals who aren’t celebrities can still claim economic injury when their
image is used among people who recognize them (e.g., friends and family). Under common law, this means
that a consumer could easily collect damages from your business, as long as they can prove that you used
their picture without their knowledge.
Individuals retain the copyright
to their photos even after posting
them to social media.

60
Avoiding Misappropriation and Infringement Claims
So how can you use your fans’ selfies without the legal headache? Dodge a social media marketing fiasco
with these simple steps:
• Never use customers’ social media photos in print advertising campaigns that could generate
significant revenue. If you want to use the photos for commercial purposes, you must have permission.
• Only use photos that you can confirm are of the photographer. Otherwise, you’ll have to track down
permission from the subject of the photo as well as the photographer.
• Only share customer photos on the social media site that the image was originally posted on. Most
social networks permit you to share content on the site. Be sure to attribute credit to the creator of the
image. If they ask you to remove the image from your page, remove it.
• When in doubt, ask the user. You can’t go wrong by covering your bases and attaining consent before you
use an image that isn’t licensed to you.
Bottom line: Uploading a photo to social media doesn’t nullify copyrights or privacy rights. While you can
use customer photos to promote your brand in some situations, be sure you do so mindfully and legally.
How to Mitigate the Risks of Viral Marketing on Social Media
Viral marketing has fundamentally changed the way small businesses can get the word out about their
products or services online. The widespread use and accessibility of social media means viral marketing
can raise visibility and brand engagement for little to no cost. And when done right, a viral campaign can
catapult the success of a small business.
But viral marketing isn’t without its risks. In fact, a single campaign
could make your brand or damage it beyond repair, especially if you
commit an advertising injury in the process. Once that mistake is
viewed by millions of people, the violation can be harder to settle
quietly with your business’s reputation intact.

61
Take, for example, the case of GoldieBlox, a small company that creates toys for young girls. The business
got a boost from crowd-sourcing fundraisers, and followed up the attention it received with a commercial
that quickly went viral. However, the toy company didn’t have authorization to use a rendition of the
Beastie Boys’ song “Girls” in the video.
The band is suing the small company, demanding that GoldieBlox hand over profits it earned from using
the song without consent. The Beastie Boys are also seeking damages, lawyers’ fees, and an injunction that
will prevent GoldieBlox from using the song in the future. (Read more about the lawsuit in AdWeek’s article,
“Beastie Boys Countersue GoldieBlox, Seeking Profits Earned Off Viral ‘Girls’ Ad.”)
Once your video, blog, or other marketing content is live on the Web, it’s not always up to the consumers to
decide whether your strategy is a success or failure. Sometimes, that decision will belong to the courts.
When Viral Marketing Backfires
Creating viral marketing content for social media is a delicate balancing act. You want your efforts to seem
“organic,” but at the same time, you need some traditional tactics so that your audience will recognize your
brand. But what you may not be taking into account is how easily your best-laid campaigns can backfire if
you’re not watching out for common advertising injuries.
Say, for example, you want to create a shareable video that pokes fun at one of your competitors. It’s an
unexpected hit, and major media outlets report on your spot, which generates even more awareness and
shares. By the end of the week, your video has more than a million views on YouTube and other social
media outlets.
But now your competitor is alleging that your small company committed slander.
Recall from Chapter 2 the three factors that determine whether or not a spoken
statement is slanderous:
• The statement must be false.
• The statement must be made in public.
• The statement must have hurt someone’s reputation.

62
If your competitor can prove that your viral video hurt its sales because you made untrue remarks, you
could face a hefty fine or settlement.
Other viral marketing efforts could saddle you with a fine from the Federal Trade Commission (FTC) if you
misrepresent your products or services in order to boost sales. It’s illegal to write fake reviews for your
business or to pay someone else to write reviews for you.
For example, back in 2006, Walmart’s PR firm created several blogs that showed the retailer in a positive
light. The most well-known blog was called, “Walmarting Across America,” and it featured a family traveling
across the country in an RV and camping in Walmart parking lots. The fake blog heaped praise on the big
box store and its employees. But after the real story surfaced about the blog’s origin, both Walmart and its
PR firm raked in bad publicity over the stunt.
The Dos and Don’ts of Viral Social Media Marketing
As you’ve seen, viral marketing comes with legal risks that could land your business on the wrong side of an
advertising lawsuit, including those related to copyright infringement, libel or slander, and misappropriation.
When working on your viral marketing masterpiece, be sure to consider these pointers:
• Don’t use copyrighted material without permission. If you want to use a song in your business’s video,
first obtain the rights. And remember, just because you found a picture on social media doesn’t mean the
creator doesn’t retain copyrights. Though user-generated photos can be excellent fodder for a grassroots
marketing effort, you could be sued for copyright violations and misappropriation claims when you use
others’ photos without their consent.
• Don’t trick or mislead people. Not only will you put off your target audience, but you could also be fined
for false advertising or other FTC violations.
• Do run your marketing plan past a focus group, including a lawyer. Show the group your marketing
material and get their feedback. This will let you know if your plan will appeal to your target audience and
whether it remains on the right side of the law.

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