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Keep Your Social Media Marketing Legal

Social media has become invaluable for communication and marketing purposes. This article outlines some key legal aspects important in the use of social media for marketing purposes.

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Updated:

January 17, 2023

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Social media has become invaluable to farms and agricultural businesses as they connect with the public for both communication and marketing purposes. The advantages to social media marketing include ease of use, price point, and accessibility. Don't be fooled by the ease and flexibility that comes with social media, however. You must continue to abide by the requirements for content use and information gathering just as you would with other forms of marketing.

Understanding Social Media Platform Terms of Service

It is essential to understand and abide by each social media platform's terms of service. When creating an account, you will have been presented with this information and asked to indicate your understanding and agreement to follow. Typically, and at a general level, terms of service will outline who can use the service of the social media platform, what the data and privacy policy is for the platform, guidelines regarding content, and any disclaimers. The terms of service for some social media platforms are more detailed than others, and each is different.

It is your responsibility to stay current with the terms of service for each social media platform that you have an account with. Terms of service are continually evolving as social media companies respond to current events and security breaches.

Pictures, Video, Artwork, Music

Content that captures users' attention and draws them in are key to success with social media marketing. Use of imagery and music are key to this. The internet and social media have made the sharing of this type of content incredibly easy. Unfortunately, just because it is easy to find the image, video, or music that fits the message you want to convey with your social media post does not mean you have the right to use it. Discussed below are key terms and aspects regarding this type of content and its use.

Trademarks and Copyrights

A trademark is an identifying mark used in connection with particular goods or services. A trademark can take many forms including a word, name, symbol, slogan, device, sound, fragrance, color or "trade dress" of a food product packaging. The purpose of a trademark is to inform the public about the source of the goods or services. Unless you have express permission or license to use a trademark other than your own, do not use it and do not try to confuse consumers by imitating it.

Copyrights protect original works of authorship including literary, visual, written, dramatic, artistic, and musical works such as pictures, graphic art works, cookbooks, films, TV shows and movies, and songs. Copyrights do not protect facts, ideas, systems, or methods of operation. They protect the way those things are expressed.

Copyrights attach at the time of creation. They protect both published and unpublished works. There is no requirement to use the "©" symbol to protect copyrights in a creation. Copyrights give the owner of the rights the exclusive right to reproduce the protected work, display the copyrighted work publicly, prepare derivative works based on the copyrighted work, and distribute copies of the copyrighted work to the public by sale, rental or lending and/or to display the image. So, don't just assume that just because you found a picture online it's yours for the taking - doing so could land you in court just as this case (Perennial Farm found liable in copyright infringement suit ) illustrates.

Your Own Content

The safest way to ensure that you have full legal control and right to the imagery, video, and/or music used in your social media posts is to have created it yourself. Small ag businesses typically don't have the ability to dedicate one person to the position of social media manager. This requires you to actively manage and plan time for content development activities. Invest the time necessary to create quality content.

Numerous online tools exist to assist in content creation. For example, if you're not happy with your visual design skills, you have the option of using online tools that assist with pre-designed templates and color palettes. Canva, Figma, Fotor, and Colormind are some examples of design tools that can be used. Canva also provides articles on best practices and examples to spark creativity.

You may want to use pictures or video showing people engaged in activities that you offer or using your products. Pictures and video of children are especially engaging on social media, but require extra caution. If individuals can be identified in the photos, the best thing is to obtain permission from them to use the photo/video as part of your marketing materials, specifying possible use on social media. Keep permissions filed in either paper or electronic format. Some individuals may be okay with you using a photo of them on a flyer, but may object to their image being shared on social media.

Tips for Content Development and Management

Create a file or list of ideas.
Keep a file of finished content (photos, video, stories, data, etc.) that is readily accessible for use.
Schedule time into your calendar for content creation just as you would for other work responsibilities for yourself and/or employees.
Develop content during a slow(er) time.
Hire a photographer, videographer, or graphic designer to create content for you.
Keep a file of finished content (photos, video, stories, data, etc.) with permission to use releases.

Using Others' Content

If you do decide that you need or want to use content that was created by someone else, make sure you follow the rules.

Know the copyright. There are websites where you can obtain, either for free or for a fee, content that you can use. Make sure when you download the content that you understand the copyright that applies to it. Some content must remain as is – that is, you cannot make any adjustments such as cropping the photo or adding to it. Other types of copyrights will allow you to adjust, while others require that you give credit to the creator/artist.

Obtain permission. If you're not purchasing content and as a result know the copyright attached to it, you should obtain permission from the creator/artist. This can easily by done by sending an email. Explain what piece of content you'd like permission to use and how you will be using it.

Give credit. In all cases, you should give credit to the creator/artist. Not only is it bad form to omit credit, you could get yourself in trouble by not abiding by copyright. The repercussions for not giving credit can range from damaging your reputation to monetary and legal consequences.

Sharing from Other Social Media Accounts

But what about sharing content that someone has already posted to social media? Doesn't that make it fair game? The answer is no. If the content someone has posted is their original work, then they hold the copyright and you should obtain permission from them to use that content. If you want to share or retweet another's content, ensure that your post shows that you are sharing/retweeting, thereby giving credit to the person or business that created and posted it.

What if people tag my business in a post or post a picture or video to my business's social media profile? Can I use that content? Again, the answer is no, you first need to obtain permission.

Contests

Contests are a proven tactic to increasing follower engagement with content that you post on social media in addition to building customer loyalty. Each social media platform however has their own guidelines for the types of contests you can promote and how you can take entries. These guidelines are outlined in the platforms' terms of service. In addition, some states prohibit certain types of raffles, others require that giveaways involve games of knowledge not chance, and others may require a gambling license. The nature of the Internet means one can easily cross borders and inadvertently run afoul of local laws. Check with an attorney experienced in Internet law before you run a contest or sweepstake.

Endorsements

Truth in advertising is the law in all media. An endorsement must reflect the honest opinion of the endorser, and can't be used to make a claim that you couldn't legally make. When bloggers and others write online reviews, if they're family or employees or if they were paid or received free items in exchange for their review, that must be disclosed. The Federal Trade Commission (FTC) requires that paid relationships be transparent with appropriate wording in the post. For example, this could be accomplished through the use of the hashtags "#ad" or "sponsored."

Collecting Customer Information

Sometimes you will want to drive social media followers to a website or e-commerce platform that may ultimately include the collection of their personal data. This data may be their name, email address, phone number, physical address, credit card number, or any combination of these. While there is no overarching federal digital privacy law in the U.S., the Federal Trade Commission and state attorneys general enforce a patchwork of federal and state laws to protect the rights of individuals online. To ensure best practices in collecting and protecting the information that you get from online customers, set up a Privacy Policy on your website and require your users to agree (for example, by clicking "I agree") to it when you collect information from them. Once you've collected the data, store it with a reputable cloud storage provider.

California Online Privacy Protection Act (OPPA)

The California Online Privacy Protection Act (OPPA) requires that you need to disclose the kinds of information your website or online marketing tactics collect, how the information may be shared, the process your customers can follow to review and change the information you have about them, and your policy's effective date and a description of any changes since then.

If you have an online store or if you're marketing to people online in the U.S., you're quite likely to have customers or potential customers in California, so you should take care to comply with this law. The easiest way to comply is to set up a Privacy Policy on your website and require your customers or website users to agree to it when you collect information from them.

Privacy Information Notification

Make sure customers/visitors are informed of the following:

What information you are collecting
How it will be used
How to opt out in the future

General Data Protection Regulation (GDPR)

You may have heard about GDPR but thought because it's a European Union regulation it doesn't apply to you. Wrong. If there's any chance that you are doing business with a resident of the European Union – think about vacationers – you must comply. This includes ensuring that individuals want to receive electronic communications (think can-spam laws), that they know how you'll use any personal information you collect, you limit your collection of personal information to that only necessary for the purpose you're collecting it for, and that you have a process in place for requesting and removing personal data from your files.

Summary

Social media has become a go-to platform for the marketing activities of small farm and food businesses. Just as with more traditional forms of marketing, you must adhere to rules and guidelines for the use of photos, video, and music used, endorsements, and data privacy. Detailed and accurate records for your social media marketing activities will help keep you safe.