Legal Response to Newcomers’ Concerns in Launching Social Media Campaigns

October, 2012 was a busy month for social media panels in Westchester, NY where my offices are located. I spoke at the Westchester County Bar Association about “The Evolution of Lawyers’ Ethics: Traps in Traditional Transactions and in the Use of Social Media” and at the Ad Club of Westchester on “Real World Successes (and Lessons Learned) with Social Media.”

In both instances, I was struck by some common themes that emerged.  Here, I offer my lawyer’s response to these concerns.

1)  Nerves: Newcomers to social media are nervous. They want to leverage the power of social media, but they are concerned about the time commitment involved and doing it “right.”  While there is no doubt that social media requires a commitment, doing it “right” means more than looking at what your competitor is doing. Instead, doing it “right” involves detailed risk analysis from both a marketing and legal perspective. Unfortunately, the legal perspective seems to be either an afterthought or not even on the radar for small to medium sized businesses and not for profits. Consider the cause marketing that is now rampant after Hurricane Sandy. Many businesses are promoting their goods/services while offering a percentage of profits to Sandy victims. Are these businesses aware that the New York Attorney General has issued “best practices” to promote cause marketing transparency through a series of disclosures? While businesses are nervous about getting it “right” from a marketing perspective, they are not taking proactive steps to protect themselves by conferring with specialized legal counsel to be sure their marketing initiatives do not put them at risk.

2)  ROI: The question of when brands will see a return on investment from their social media remains in the forefront of business owners’ minds. Those who are ahead of the curve realize that metrics may be ephemeral with social media, but the long-term benefits of brand recognition are priceless.  As 2012 draws to a close, brands have started to understand that the goal is not amassing “likes” or followers. The goal is to interact with customers in a meaningful way via social media that builds loyalty and secondary meaning in the marketplace. If done right, this builds a brand’s trademark worth (indeed, trademarks are company assets and can be valued if a company is sold) as well as the bottom line.

3)  Copycat Campaigns: Avoid copycat campaigns. They may be easy to implement, but copying only invites risk. Social media is not one size fits all. Brands need to understand the intrinsic risks of soliciting brand advocates, including the compliance requirements for the various platforms’ terms of service, FTC regulations, intellectual property concerns, and employment issues.

4)  Strategic Planning: Too many brands adopt social media with the “throw the spaghetti at the wall and see what sticks” approach. Without strategizing, however, social media campaigns will not be productive. Not every platform is appropriate for every brand, whether for marketing or legal reasons. In addition, the goal is not just to put content into the ether, but rather to interact with consumers. To accomplish that goal, it is important to confer not only with marketing experts but also legal experts. In my last blog post, I discussed how the FTC is watching influencer programs carefully. Brands should step into social media with a strategic plan that includes legal analysis to minimize risk. By including legal counsel on the team early, brands can create more innovative social media campaigns.