How to use the Internet to market — and protect — your brand Featured

8:00pm EDT April 25, 2010

Social networking has grown significantly in recent years and covers a broad range of online sites used by people of all ages, says Peter Berk, an attorney with McDonald Hopkins LLC.

“From LinkedIn to Facebook to MySpace to FourSquare to Twitter to other online sites that let people connect with others in their business fields, networks or friend circles, social networking has exploded as a new world of communication,” says Berk. “With that ability comes benefits and risks.”

Smart Business spoke with Berk about social networking and how to protect yourself — and your brand — while online.

What legal issues do companies face in the social networking area?

Social networking has become both a boon and a burden for businesses. The marketing potential of social networking sites is continuously being explored and advanced by businesses on the cutting edge of this technology. But there are legal issues surrounding a business’s use of social networking, and a business’s rights can be more easily infringed upon through social networking.

For example, social networking has allowed disgruntled employees, upset customers and others to attack companies and their brands online. The structure of social networking and the Internet makes it easier and less costly to send an anonymous, disparaging message to hundreds or thousands of people in the blink of an eye, with little ability for the business to effectively respond.

Intellectual property issues, such as those involving trademarks and copyrights, can also be problematic on social networking sites. The structure of such sites makes it easy for companies to promote their brands and their copyrighted material. But such technology, if not dealt with appropriately, can also make it easier for others to steal copyrighted material or copy and misuse trademarks, harming the company’s brand. Social networking creates a whole new world for businesses to police when it comes to their intellectual property.

Filing a lawsuit in such circumstances may not be the best answer as it can lead to unexpected results. For example, a person or entity that has defamed a company, infringed its intellectual property or otherwise harmed it through social networking can wage a very public battle with the company through social networking during the lawsuit. Therefore, before filing a suit, or even threatening one, confer with your leaders and legal advisers to determine the best strategy for protecting the company’s rights and its image.

Can a business use social networking to investigate potential or current employees?

Many companies search the Internet, including social networking sites, to research potential and current employees. This information is readily available, but companies should keep a few things in mind.

Impersonating someone on a social networking site to gain information can be considered fraud, and a violation of the site’s terms of use. The scope and restrictions under relevant privacy laws should be taken into account when performing such research on current or potential employees.

Even if you discover something that may make you wary of hiring someone or make you reconsider an employment decision, state and federal laws, including those on discrimination, still apply. For example, simply because you found out on Facebook that a current or potential employee was pregnant does not make it OK to make an adverse employment decision based on that fact.

How should an employer deal with employees’ use of social networking at work?

From a purely legal perspective, subject to local laws on privacy, courts rulings on the scope of such laws within the workplace, and existing company policies, a company can impose rules about the use of social networking at work on company equipment.

However, there are also employee morale and company culture issues to consider. There should be a balance between the need to have employees focusing on work and not wasting company assets, and the realities of the place social networking has in people’s lives and the company’s culture.

Further, some companies may encourage employees to use social networking to increase business. However, they need to be aware that, depending on the situation, employees’ statements on their own social networking site can be attributed to — and used against — the company. Businesses that encourage business use of social networking should consider training employees on the appropriate use of social networking.

How can businesses protect themselves on social networking sites?

Whether or not they are using social networking as part of their marketing strategy, businesses should be aware of what is being said about them. Social networking is another area companies need to monitor.

If businesses are using social networking for business purposes, they need to be aware of what they and their employees do and say on such sites. Anything a company puts out on social networking sites is liable to be taken by another user for their own purposes. A company’s trademarks, copyrighted videos, marketing efforts and coupons are subject to being taken and misused.

Also realize that anything you say on a social networking site, even if it stops appearing on the live Web page, can be stored forever. A statement that may be perfect for the company now could come back to harm it in the future, as litigating parties have become much more sophisticated in looking for evidence on social networking sites.

Further, social networking sites have features that allow others to post comments, but not all comments are good. A business should investigate the controls it has over such comments and whether the ability for others to comment can be turned off or if comments can be deleted. However, keep in mind that such restrictions can cause a backlash if users are not allowed to post or if their posts are deleted.

Peter Berk is an attorney with McDonald Hopkins LLC. Reach him at (312) 642-4168 or