From clicking “like” on Facebook to the +1 button on Google+ to the “Follow” or “Retweet” buttons on Twitter, the use of endorsements in social media has exploded since 2009. “Like” buttons and retweeting are growing trends in social media. While the use of third-party endorsement type functionality in social media has obvious benefits in marketing and advertising, the increasing use of a “like” option in social media outlets may have legal implications for businesses.
A “like” button or similar type of “like” option is a feature in social media outlets such as social networking services, Internet forums and blogs that allows users to express enjoyment or support about certain content that is displayed by another user. For example, users can express a like or approval for various types of content, including pictures, status updates, comments, advertisements, links and tweets. Some websites also offer a “dislike” feature so that a user can express disapproval of certain content. Businesses can benefit from the use of “like” options by having third parties endorse their goods and services.
There are legal implications to the use of endorsements by businesses in social media that will likely begin to surface as the legal system continues to grapple with advancements in technology. For example:
- Can an endorsement of another user’s comments that are later determined to have been defamatory constitute further publication of the defamatory material?
- Can a company be liable for competition issues such as misleading advertising for endorsing the goods and services of another company whose representations and warranties to its customers turn out to be false?
- Can a company be held vicariously liable for the actions of its employees who “like” or endorse content that could expose their employer to liability?
- Can a company be held liable for copyright or trademark infringement as a result of “retweeting” other users’ infringing material?
These legal issues are among the many questions that will face the courts as social media use in business continues to explode. Companies can try to minimize their risk of exposure to liability by having written policies in place that govern the use of social media by their employees.
Companies should also consider the use of clear disclaimers to avoid misleading consumers into the significance of their endorsing third parties. When adopting policies around the use of social media, it is also important to take precautions to avoid inadvertent infringement of copyright and trademark rights. When engaging in social media, one must be cognizant of legal issues that may arise even from a question as simple as: Do you “like” it?
Daniel Daniele (daniel.daniele@nortonrosefulbright.com / +1 416 216 2317) a lawyer in Norton Rose Fulbright’s Canada intellectual property practice.
