By Barbara F. Dunn, Esq., and James Spellos, CMP
On March 2, attendees at NYSAE’s annual Meet NY program learned both the good and bad sides of using social media to promote their associations and programs. Jim Spellos, president of Meeting U, shared with the group the hottest technology applications and how associations can use them to their advantage. Then Barbara Dunn, an association law attorney and partner with Howe & Hutton, Ltd., shared the potential dangers in using such technology and how associations can minimize or eliminate the risk of liability. Following is a summary of each speaker’s perspectives, tips and best practices.
Technology Applications for Associations
The only constant about working in today’s business environment is change…rapid change. The association professional, like most business professionals, is struggling to keep up with the new modes of communication, the blazing speed in which information is distributed, as well as how to effectively communicate across the generations, all of whom use different technologies in their personal and professional lives.
Social Media
There’s no stopping the use of Facebook and other social media tools. With more than 600 million people on Facebook, it is the site for all types of communications. However, its successful usage is quite different from other ways associations market their events and products. Today, it’s all about the conversation, both listening to it, as well as participating in it. Facebook, Twitter, LinkedIn, and hundreds of other sites allow people and organizations to be connected like never before. Yet many seasoned professionals feel uncomfortable placing their (and their organizations) feet in the proverbial water.
Yet with all of the challenges, social media has transformed how we communicate and do business. Any association not embracing it is essentially throwing away part of its potential constituency, and that’s never good business.
Hotel of the Future
The integration of technology and hotel guest rooms was discussed. Attendees viewed a video where the mobile phone became the guest’s room key, with the key being sent to him or her via a text message using Near Field Communications. Clearly, the mobile device, whether it be a smart phone or a tablet, is helping to transform what the guest room will look like in the upcoming years. One vision of the guest room, shared by many, is that the standard telephone will soon be completely obsolete, with the hotel not even providing one for guests.
Smart Phones Mean Smarter Meetings
With the number of smart phones (phones with browsing and high speed data capabilities) outpacing feature phones, the question becomes how to use them for association tasks, including helping communicate about meetings conferences. Many tools were discussed that are available to the event organizer to provide smart phone-based conference programs, including some that allow the association to build it themselves.
QR codes are quickly gaining traction as another communications tool. These “quick response” barcodes allow people to use their phones to gain additional information about a product or service. While not new, these codes are gaining acceptance as smart phones dominate the landscape.
Other topics for associations to have on their tech radar include geolocation and location-based marketing tools, as well as the developing field of augmented reality browsing. Both phone-based tools will continue to help push the tech landscape forward, while providing many options for association managers and meeting planners to consider using at their events.
The Law Meets Social Media
Since today’s social media applications give users a terrific opportunity to connect and communicate with one another, the same interaction that can bring good outcomes can also foster bad conduct by its users. It is that very interaction and conduct that could cause liability to the association involved in the social network.
What should associations be concerned about when it comes to social media and what can they do about such concerns?
Intellectual Property
One concern with social media is that the association or its members will infringe on another’s intellectual property rights. The three main types of intellectual property are: copyrights, trademarks, and patents.
Copyrights protect original works of authorship such as books, songs, pictures, software, and speaker presentations. The person who created the work owns the work unless they created the work as an employee as part of their employment. The copyright owner has a bundle of rights to the work including the right to reproduce the work and to publicly perform the work. If someone other than the owner reproduces or uses the work without the copyright owner’s permission, the person or entity can be held liable for copyright infringement. The proper method of using someone else’s work is to either have them transfer all of their rights in the work to the organization (assignment) or for them to grant permission to use the work (license).
Often associations want to use a speaker’s presentation or handouts from a conference on their website or to post it in its social media group for review by others. In order to do so, however, associations must first secure permission from the speaker to do so (license). This is also true if the association wants to include a video or audio portion of the speaker’s program on its website. Such license can be built into the association’s speaker agreement.
Trademarks are another type of intellectual property. A trademark is a word, picture or symbol that identifies a source. Examples include the golden arches of McDonald’s, the swoosh on a pair of Nike tennis shoes, and an association’s name and logo. Trademarks refer to goods, such as clothing, and service marks are used to refer to services, such as an association’s services.
If an association uses another’s exact trademark or a confusingly similar mark without the owner’s permission, such use would constitute trademark infringement. For example, if the association developed a new name for its widget trade show, MEGA Show, and another association had already been using the name MEGA Shows for its widget trade show and the goods at the show, the association may be prevented from using the name MEGA Show.
In social media applications, it is important to ensure that the association does not display a name or logo on its website without the owner’s permission. This would include arrangements with sponsors, affinity program partners, and advertisers.
The last main type of intellectual property is patents. Patents protect a product or process such as new inventions and pharmaceuticals. Patent issues can arise with associations in the application of new technologies such as virtual trade shows. As such, associations should consult their legal professionals for guidance on patent issues.
Defamation
Another concern with the use of social media is that someone may post a communication that is defamatory to a person’s reputation and the association may be brought into a defamation lawsuit. Defamation is a false statement of fact, which harms someone’s reputation. For example, the statement that “Peter Piper is a thief” would be defamatory to Peter Piper as being a thief would harm his reputation. Note, however, that statements of opinion are not defamatory. For example, the statement, “I think Peter Piper is a thief because he charged me double to repair my car” would not be considered defamatory.
If the association published this statement on its social network or it was posted within the association’s group on another social network, such as Facebook, the association may be brought into a lawsuit. As such, it is important that individuals who post on the association’s social networks understand the association’s social media policy and agree to enter into a user agreement (see below).
Other Concerns
Among other legal concerns for associations using social media are antitrust liability (for statements made which could restrain competition), privacy violations (for the transfer of information which was provided on a condition that it would be held privately), product liability claims (for claims made by the association regarding its industry’s products), and disclosure of trade secrets/confidential information (by members or participants regarding the association or their employer). Conduct that could trigger a concern in these areas should be addressed in a social media policy.
Combating Liability
There are a number of measures associations can implement to combat liability as it relates to social media. One measure is to adopt a social media policy. Such a policy would address the proper conduct of both employees as well as members and other participant’s in the association’s social media outlets. For sample social media policies, see www.socialmediagovernance.com.
Another measure is to have members and participants enter into a user agreement as it relates to the association’s social media outlets. Such an agreement would acknowledge the social media policy and seek the person’s acknowledgment that they agree to the terms of such policy. The agreement would also address the process if an individual has violated the policy and what the association can do in light of such violation, e.g., termination of membership. Such a user agreement can be signed electronically as part of a “click wrap” agreement.
For those who read posting on the association’s social media outlet, the association should post a notice stating the statements and opinions of those participants in the group are their own and are not those of the association. In addition to such notice, it is important to include a disclaimer that the association is not responsible for any liability arising out of such statements. In order to make the disclaimer enforceable, it should be placed in a visible location on the association’s social media outlet such as the top left corner of a web page.
Once the social media policy, user agreement and notice and disclaimer are in place, the association must monitor communications in their social media outlet and enforce the policy and agreement. Such monitoring may include removing problematic communications and contacting the person who posted such communication directly. Ultimately the association can determine whether it should enforce its rights under the agreement up to terminating the membership of the offender.
When associations enforce policies, it is important to ensure that the policy will be enforced uniformly and consistently. That requires the association to train its employees and to follow up on complaints promptly. Any exceptions may be subject to scrutiny and should therefore be avoided whenever possible.
Finally, associations can arm themselves with indemnification and insurance to protect against liability. Indemnification clauses should be a part of every contract the association enters into as part of its social media strategy including the user agreement. Indemnification allows the association to seek payment of damages and attorneys fees from the wrongdoer if the association is brought into a lawsuit because of the wrongdoer’s conduct. Associations should also review their general liability policies to ensure that they would have coverage for claims relating to social media and the areas of liability referenced in this article.
Summary
The discussion of the various social media applications leads us back to the age-old principle that we should look before we leap. Associations that want to add in social media applications should first fully investigate the legal and business implications of such activity. Such a process should maximize the value of the social media applications to the membership and minimize the potential for liability to the association.
Barbara F. Dunn, Esq., is with Howe & Hutton, Ltd. She can be reached at 636-256-3351 or bfd@howehutton. James Spellos, CMP, is president of Meeting U. He can be reached at 718-224-5516; jspellos@meeting-u.com; twitter.com/jspellos; or Facebook.com/MeetingU