Technology: Why it pays to read the fine print on social media terms of use

Not understanding the rules on various social media sites could lead to a loss of control, or worse.

If you’re like most people, you’ve probably accepted terms of use for dozens of online services without even reading them. However, the terms and conditions you’ve accepted – particularly when creating an account on behalf of your company – can cause problems down the line. Companies using social media platforms as part of an online advertising strategy should understand that the terms of use of these platforms likely are enforceable. They should also understand that there are specific terms governing ownership of uploaded content, promotions and other issues that may impact an online advertising strategy.

Courts routinely hold that website terms and conditions may be a binding and enforceable contract between the website and the user. With regard to social media, federal courts in Illinois and California have held that the Facebook and Twitter terms of use regarding forum-selection are enforceable against individual users. If courts enforce terms of use against individual users, they are likely to enforce them against more sophisticated, business users. Thus, companies using social media platforms should not brush off the terms of use, assuming that they are inconsequential or won’t be enforced.

Companies may be particularly startled with regard to the terms of use applicable to their uploaded content. For example, the terms of use for each of the major social media platforms – including Twitter, Facebook, Pinterest, Instagram, and Tumblr – include a license provision providing that, as a condition of using these sites, the user agrees to give a no-cost license to the proprietors of that site regarding any uploaded content, even if the content is later removed by the user. Brand owners therefore need to be particularly cautious when uploading content to one of these platforms, as there is a potential for loss of control over uploaded content.

Another area where many brand owners can run into issues with social media terms of use is in running contests and games, which is an increasingly popular way to use social media sites to drive web traffic and engage consumers. In addition to the many state and federal laws surrounding such promotions, every social media platform has its own rules about how users may utilize its services in connection with promotions. Companies must take care to understand and comply with the applicable platform terms of use and not just the applicable law. For instance, Twitter requires that any contest promoted through its site include a rule disqualifying anyone found to use multiple accounts to enter. Likewise, it forbids contests that encourage duplicate updates, e.g., “whoever retweets this the most will win.” Facebook requires companies to administer all promotions via an app – and not use Facebook features (such as liking a page or post, or checking in to a location) – as the mechanism for registration or entry. These kinds of rules may vary widely between platforms, and companies should be aware of the specific rules applicable to any social media site where they are considering running a promotion.

Moreover, as with everything in the social media space, the rules can and do change frequently. For example, Pinterest recently updated its rules regarding sweepstakes. In the past, brand owners created contests where users were required to re-pin the rules to confirm their assent and eligibility and to then pin from a limited selection of photographs (presumably to avoid potential copyright issues). Neither of these practices is allowed under Pinterest’s new rules. Brand owners who fail to keep abreast of the rapidly changing rules may face harsh penalties.

These are just a few examples of terms of use that should be understood by companies using social media platforms for advertising purposes. The ability to engage consumers through social media cannot be ignored. However, because the terms of use for social media websites are likely binding on users, companies using social media to reach their consumers would be well-advised to read the terms of use carefully, particularly before sharing content or running any promotions. And, because the landscape can change rapidly, meaningfully and without notice, brand owners should understand and be advised of the “fine print” every time.

Contributing Author

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Christopher D. Mickus

Christopher D. Mickus is an attorney with Neal, Gerber & Eisenberg LLP (Chicago). He is a partner and leader of the firm’s recently-launched Advertising, Marketing...

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Katherine Nye

Katherine Nye is an intellectual property attorney in the Advertising, Marketing and Social Media Group at Neal, Gerber & Eisenberg LLP (Chicago). She regularly...

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