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

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

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how Social Media helpS SMall BuSineSSeS ......... 8

what countS aS advertiSing injury? a look at Slander, liBel, invaSion of privacy, and copyright infringeMent ...........................14

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Social Media MiStakeS that coSt SMall BuSineSSeS Big ...22

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copyright lawS & Social Media: a SMall BuSineSS guide ........................ 29

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Social Media liaBilitieS: your eMployeeS, fanS, & eneMieS ....................... 35

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the high coSt of advertiSing injury lawSuitS .......................46

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Social Media Marketing tipS for SMall BuSineSS: cut your advertiSing injury expoSure ..................53

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Beyond advertiSing injury .........................................65

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introductionOnce 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

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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

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Chapter 1: How Social Media Helps Small BusinessesAs 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

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10%

20%

30%

40%

50%

60%

70%

Engage CurrentCustomers

Boost CurrentLoyalty

Find NewCustomers

Collaborate Externally

Collaborate Internally

Boost BrandAwareness

Provide Customer Service

Combat Negative Publicity

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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.

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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 accountsdid 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.)

Social Media Sin #3: 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

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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.

Social Media Sin #5: 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.

Social Media Sin #6: Ignoring Ratings & Review Sitesninety 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.

Social Media Sin #7: 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

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Getting It Right: Social Media for Small BusinessesThe 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 [email protected], 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.

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

chapter 2

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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 LibelBoth 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?

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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 provethat your statement was either the truth or an obvious parody. But proving a statement true or false canbe hard. let’s say, for example, that you tweeted, “We don’t support sweatshop labor, unlike [competingbusiness’s name].” does that business actually contract with sweatshops? Is your statement justhyperbole? Can your Twitter audience tell the difference? These questions will be at the heart of any libelor 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’sreputation. If people don’t know about the statement, the plaintiff can’t really argue that damage wasdone. But if you post a derogatory statement to an audience of 10,000 Twitter followers, there’s a fairchance that people read it and that it affected their opinions.

• The statement must have caused harm to someone’s professional reputation. To prove that theirreputation 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 receivedhate 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

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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 theymust 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 foundon a website.

• The infringement doesn’t meet any copyright exceptions. “Fair use” is the most common copyrightexception. Fair use allows an unauthorized party to use someone’s copyrighted work in certaincircumstances. 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.

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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.

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intrusion upon SeclusionThink 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 Factssome 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.

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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…

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• 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 100,000Facebook “likes.” udin suggests it’s likely that the tweet led some fans to believe that heigl had some kindof 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 makemoney for promoting various brands – they don’t work for free. And to further that thought: you canimagine that if it was deemed “legal” for companies to use celebrities in advertisements for free andwithout 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 thetweet was not intended as “commercial advertising” and that no formal relationship was implied. But whyelse 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 casesagainst businesses – and winning. The article uses a michael Jordan – Jewel-Osco case from 2009 as anexample. The grocery chain used a photo of Jordan in an ad congratulating him on his Basketball hall ofFame 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.

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Social Media Mistakes That Cost Small Businesses Big

chapter 3

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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

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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”

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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

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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?)

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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 Social Media MarketingInstead 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 onsocial media. detail goals for social media accounts and strategies you’ll use to achieve those goals. Thiswill require an upfront time investment, but will save you time down the road making individual decisionsabout whether or not to post items. For more information, jump to the “Create a social media Policy foryour 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 fromone of the social media software platforms we mention on page 40. Once you have a schedule, you canavoid 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 followersand fans. each interaction should deliver mutual value. For example, you can use social media for customerservice opportunities

4. Update account passwords. make passwords strong and only share them with people in your businesswho will be in charge of updating accounts. Add password update reminders to your social media calendarat 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.

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5. Identify an image source that won’t lead to copyright violations. getty recently announced an option forusing its images free of charge. Other stock photo sites have reasonably priced packages that many smallbusinesses can fit into their budgets. most people have camera-equipped smartphones. Whatever yourimage 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 policydocument 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 thatyour 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.”

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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

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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 copiesfor the classroom).

• scholarship.

• Research.

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The Four Pillars of Fair UseTo 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 someoneelse’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 beconsidered 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, theuse was probably for aesthetic or entertainment value. By contrast, a search engine’s reproduction ofcopyrighted 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 orfunctional works. If the work is unpublished, out of print, or confidential, the fair use defense may notapply. so when determining your business’s liability in a copyright infringement case that stemmed from asocial 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 copyrightedwork without transforming the “essence” of the original, it will be harder to mount a successful fair usedefense. 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 postingsomeone’s copyrighted work online hurt the owner’s ability to market or sell their art. For instance, whenyou post someone’s copyright-protected photo on social media, the widespread circulation of the imagemight 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.

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Fair Use or Foul Play? Mitigate Your Social Media Copyright Infringement RisksIt’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 thecontent can be used, ask the author. It’s always better to err on the side of caution and not postsomething 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 thesite’s terms of use. many social networking platforms allow users to repost or retweet content on the siteif 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 fairuse defense if your actions spark a complaint.

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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 youblatantly break a copyright law.

• Legal contact. On the other hand, you could receive a cease-and-desist letter from a lawyer representing theimage’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, youmight be served with notice of an advertising injury lawsuit. This would require you to contact yourlawyer and your insurance provider.

you can learn more about copyright lawsuits by jumping to Chapter 6: The high Cost of Advertising Injury lawsuits.

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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.

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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?

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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 LawsuitsWhen 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.

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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 Protectedsocial 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

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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 cansimplify and automate your marketing campaigns. you can schedule tweets or posts, analyze social mediatraffic, 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 theropes. This service can create and maintain custom campaigns that are tailored to your business and itstarget 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 platformthat drives in-store sales through mobile websites, email marketing, PR campaigns, advertising, and localdirectories. 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 Breachesdid 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 divulgesensitive information that will allow them access to your network. It’s kind of like a spam email that asksyou to wire money to a stranger overseas – except it’s usually not so easy to spot. The hacker usesadvanced psychological techniques to gain your trust, and that’s why they call it “social engineering.”

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• Credential theft. some cyber criminals try to gain access to social media accounts by figuring out yourlogin 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 singlehack in 2013 compromised a total of 2 million accounts on google, yahoo!, Twitter, and Facebook in thisway. Once a hacker gains access to your account, the consequences are endless. Perhaps they may startsending defamatory tweets to your followers. Or maybe they will pose as your business and try to trickyour fans into handing over their sensitive information.

• Malware. social media is all about swapping content. you’re likely familiar with the heartwarming (ortear-jerking) photos and stories that go “viral” on Facebook pages. But did you know that cyber criminalscan 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

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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

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• 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 socialmedia talent. Fear not. One of the upsides of social mediais that it is always changing. Anyone who claims to be anexpert today must also be continually learning to remainan expert tomorrow. With a little bit of time and talenton your part, you can establish a productive social mediapresence by selecting two or three social media platformsto focus on. By learning each platform well, publishingcontent often and monitoring engagement, you will beable to be in the game in a way that returns tangiblebenefits. When you begin to reap the benefits of your hardwork 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 strategyand no time to learn or take on a new responsibility.surprising as it may be, having a solid marketing strategyin place is not as common in business as it should be. Thefact that you do suggests that you also have a strong graspof your overall business strategy and how marketing fitsinto it. With quantifiable objectives and a means formeasuring progress over time, you are in a great positionto define your social media objectives, secure social mediatalent, and implement a compensationprogram that is aligned to results.

• Your business is growing and your customers are activelyengaged and digitally savvy. you likely already have socialmedia talent on your team in some capacity and arereaping the rewards! you’re staying on top of contentmarketing 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 talentWhether 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 socialmedia, a candidate must have a solid grasp of businessmarketing. This includes the traditional 4 Ps; product(or service), place, price, and promotion, as well ascontemporary inbound marketing strategies. It would be asignificant waste of time and resources to employ a personwho may know how to write and publish content, but notunderstand how it fits into the total business strategy in away that serves business objectives. success in marketingis all about the right content in the right context.

Look for a social media hire with a robust personal presence on social sites.

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• Social media experience. Because you are paying fortalent that you yourself lack the time, skills and/or desireto perform, you want be sure that you hire someone whopossesses more knowledge, experience, and capacity tocontinually learn than you do. This includes proficiency inusing multiple social media platforms, researching andstaying on top of industry trends, developing compellingcontent and tracking, and reporting on performancemetrics and outcomes.

• Social media presence. What is the candidate’s personalpresence on social media? how and where they engageand how often they post will tell you a lot about whetherthey will fit with your business culture and how well theywill fulfill your social media objectives.

• Industry perspective. As part of the interviewing process,invite candidates to submit a brief overview of how heor she would go about improving your social mediapresence. This is a great way to learn whether they’vedone their homework about your business and how wellthey 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.

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Why It’s Important to Schedule Time to ReassessChange 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 goingon in your industry, with contemporary marketingstrategies, and with your customers. This includesknowing what your competition is doing to reachcustomers.

2. Be smart. do you have the budget and capacity to trulytake advantage of the benefits that social media has tooffer? do you have the right social media talent workingfor you? having a solid overall marketing strategy, adetailed job description when using in-house talent,a comprehensive contract when outsourcing, and areliable tracking and reporting mechanism are just someof the wise practices to have in place to ensure ROI.

3. Routinely reassess. set benchmarks, milestones,and deadlines across all parameters. This includesperformance assessments of your social media team, evaluating outcomes, refining your plan, and reallocating resources when necessary.

When to Celebrate Progressenthusiasm 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.

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The High Cost of

Advertising Industry Lawsuits

chapter 6

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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 coverthat amount).

• Of all the business tort liability costs that year, small businesses carried81 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

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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 donnieCameron (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.

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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.

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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

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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 processif 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.

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Social Media Marketing Tips for Small Business: Cut Your Advertising Injury Exposure

chapter 7

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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+

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Tips for Reducing Social Media Marketing RisksWhen 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, privacyinvasion / 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.

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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.

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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 socialmedia accounts, and its risks. Be sure you train your employees on the policy so they understand whatthey can and can’t do online. social media platforms change quickly, so be sure your policy is always up todate to reflect these changes and emerging sites. (For a refresher on what makes a good social mediapolicy, 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 draggedinto 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 whenyou are the target of a social media-related claim. For example, a general liability (gl) policy can step into 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.

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How to Use Customer Photos Online – Legallysmall-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.

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The Risks Your Small Business Faces When It Uses Customer Photosyour 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 usersvoluntarily 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.

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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 generatesignificant 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 downpermission 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. mostsocial networks permit you to share content on the site. Be sure to attribute credit to the creator of theimage. 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 youuse 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.

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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.

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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 thecreator doesn’t retain copyrights. Though user-generated photos can be excellent fodder for a grassrootsmarketing effort, you could be sued for copyright violations and misappropriation claims when you useothers’ photos without their consent.

• Don’t trick or mislead people. not only will you put off your target audience, but you could also be finedfor false advertising or other FTC violations.

• Do run your marketing plan past a focus group, including a lawyer. show the group your marketingmaterial and get their feedback. This will let you know if your plan will appeal to your target audience andwhether it remains on the right side of the law.

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• Do keep an eye on your campaign. If things start to spiral, be prepared to go into damage-control mode.This includes engaging with the comments, but always in a professional manner. Be sure when you’reresponding to negative criticism that you don’t say anything disparaging or defamatory about the personwho penned the scathing review.

• Do carry General Liability / Advertising Injury coverage – just in case. general liability Insurance cancover litigation costs when your social media marketing goes awry. Covered claims include copyrightinfringement, privacy violations, slander and libel, and misappropriation.

The takeaway? Respect the intellectual property of others and ensure that the marketing content you’re putting out in the world is something you’d be proud to put your name on.

How General Liability Insurance Protects You from Advertising Injuries

As you may already know, general liability Insurance is an insurance policy that protects small businesses from common third-party (non-employee) lawsuits. Covered disputes typically include property damage, bodily injury, and – you guessed it – advertising injury lawsuits. let’s take a closer look at this coverage.

How Does General Liability Insurance Work?

like all insurance policies, general liability Insurance works by shifting the cost of a covered claim – an advertising injury lawsuit, for example – from your shoulders to an insurance provider’s shoulders. When considering general liability policies, it’s important to keep three numbers in mind:

• Premium. This is the price you pay for your insurance coverage. As long as you pay your premium on time(whether that’s once a month or once a year), you should be able to collect insurance benefits when acovered event arises.

• Deductible. This is the small amount of money you pay out of pocket toward a covered claim. you won’tbe able to collect your benefits until you pay your deductible.

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• Policy limit. every insurance policy has a limit – the maximum amount of money your insurance providercan provide in benefits. general liability Insurance usually has two limits: a per-occurrence limit (theamount the insurer pays toward any one claim) and an aggregate limit (the amount the insurer pays duringthe term of your policy, which is usually a year). most small businesses choose policies with a $1 millionper-claim limit and a $2 million per-term limit.

In the event that your business encounters a covered event, you would file a claim. When approved, your insurance provider can help you pay for related expenses, including…

• Attorneys’ fees.

• mediation expenses.

• settlements (i.e., the amount it takes to resolve the issue out of court)

• Judgments (i.e., the amount of damages a judge or jury orders your business to pay).

• Other court-related fees (e.g., witness fees, evidence fees, etc.).

As you know, these costs can add up quickly – which is why this type of insurance is so important for small-business owners.

What Types of Advertising Injury Does General Liability Insurance Cover?

like any insurance policy, general liability Insurance may come with “exclusions,” or incidents that the policy will not cover. The good news is that general liability Insurance covers most types of advertising injuries, including but not necessarily limited to:

• slander and libel.

• Privacy invasion.

• Copyright / trade dress infringement.

But it’s always important to go over your policy with your insurance agent to make sure you understand exactly what is and is not covered. Insureon agents would be more than happy to answer any questions you may have – contact us today!

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Beyond Advertising Injury

chapter 8

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Chapter 8: Beyond Advertising Injury

What’s Illegal on Social Media?Advertising liability lawsuits are not the only way small businesses can get into trouble with social media. While social media defamation suits can be expensive, they typically play out in civil court. With other kinds of cyber offenses, however, small businesses could find themselves facing criminal charges, which can come with costly fines and even jail time.

Read on to find out how a single social media post can lead to costly court cases and criminal charges for a small business – and how to keep your business out of trouble.

An Increase in Cybercrime

According to the Wall street Journal’s article, “Annual u.s. Cybercrime Costs estimated at $100 Billion,” cyber attacks, hacks, and harassment are on the rise – and they’re costing people big-time. From the high expense of litigation to sort out losses and fines to repairing relationships with the public, businesses can suffer major financial losses from their online comments.

But some digital offenses are more than just expensive. some qualify as crimes. let’s take a look at some offenses you may inadvertently commit when you market your business’s products or services on social networking sites. In addition to triggering an advertising injury lawsuit against your business, any of these offenses could lead to criminal charges.

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Obscene Electronic Communication

When it comes to cybercrimes, “obscene electronic communication” refers to unwanted and persistent contact over the phone or Internet (i.e., email or social media interaction). even if you hire a company to tweet or interact through social media on behalf of your business, you could still be held accountable if the recipient finds the communication to be…

• harassing.

• Annoying.

• molesting.

your company can be prosecuted for committing obscene electronic communication if the state can prove that…

• you made electronic contact or caused contact to be made repeatedly. Though “repeatedly” is subjective,your state will define what number of touches qualifies as too much. In massachusetts, for example, thismeans three or more times.

• The sole purpose of making repeated electronic contact was to harass, annoy, or molest a personor their family.

many jurisdictions don’t care whether or not a conversation ensues for the offense to be punishable. Penalties for the crime range from fines to imprisonment, but the punishment depends on where you live.

And there are other obscenity laws to bear in mind, too. more than 25 jurisdictions in the u.s. ban certain kinds of speech. For instance, when publishing content online, you could be subject to legal

action if you post racist, politically subversive, seditious, or inflammatory material that could incite hate crimes.

More than 25 jurisdictions in the U.S. ban certain kids of hate speech.

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Again, legal consequences depend on where you live. But it only takes one person or one group to see your comments as obscene (or slanderous or libelous) for you to be faced with an advertising injury lawsuit or worse.

Cyber Stalking / Cyber Harassment

Other potential cybercrimes to be aware of are cyber stalking and cyber harassment.

• Cyber stalking is the use of the Internet, email or other electronic communications to stalk a person.“stalking” refers to a pattern of threatening or malicious interactions or behaviors. To be considered cyberstalking, the threat of harm must be credible. Classification of the crime can range from misdemeanorsto felonies. In mississippi, for example, a cyber stalking conviction is an automatic felony with a$5,000 fine or two years in penitentiary – or both.

• Cyber harassment typically doesn’t involve a credible threat. Rather, cyber harassment refers tothreatening or harassing email messages, instant messages, blog entries, or websites that tormentan individual.

As a rule, any electronic comment that may be found derogatory or offensive could be considered harassment. This is a reminder to be careful about what you post online, as the legal consequences may be surprising and hurt your business’s public reputation.

To find out what your state’s cyber stalking and harassment laws are, check out the chart, “state Cyberstalking and Cyberharassment laws,” by the National Conference of State Legislatures.

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concluSion

now more than ever, advertising injury issues are a real concern for small-business owners. Why? Because small-business owners are (smartly) harnessing the cost-effective power of social media. unfortunately, social media is a hotbed of advertising injury claims, such as copyright infringement, privacy invasion, slander, and libel. In some cases, small businesses can be accused of advertising injuries even when they stay on the right side of the law. The good news? small-business owners can use risk mitigation techniques to reduce their chances of claims. They can also purchase general liability Insurance, which almost always includes coverage for advertising injury lawsuits.

Tweet or Twibel: The Small-Business Owner’s Guide to Advertising Injurywww.insureon.com/products/general-liability-insurance/advertising-injury