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Associations and Social Media: Managing the Risks and Liabilities

Hosting a Blog

Like every new technology and means of communication, blogs and online social networks are accompanied by risks and potential legal liabilities. Some potential legal liabilities include: defamation, copyright, anti-trust violations, FHA violations, Right of publicity/right of privacy, tort liability, vicarious/contributory liability, harassment and the new crime of cyberstalking.

If an association hosts a web blog on its website, it is a good idea for the association to create a blog policy and stick to it. Here are three main issues to consider when drafting the policy:

  1. ONE: Terms of Use (TOU)

    1. The TOU for a website or blog set out the rules that users must abide by when using your website. It is a good idea to incorporate the blog policy into a website’s TOU.
    2. Please consult the handout “Checklist for Drafting a Blog Policy for an Association Website” when drafting a blog policy.
  2. TWO: Operating the blog

    1. Who will be able to access the blog and how? Will the blog be hosted on the AOR website or on a third party website such as Blogger.com, Blogcatalog.com, or Wordpress.com? Will the blog be open to the public, have selective membership, or be located behind the association’s firewall?
    2. Does the association want to review each comment that is posted to the blog? If so, what will be the process of review?
      1. The Communications Decency Act (CDA), 47 U.S.C. §230, encourages but does not require websites to review or filter user-generated content. It states, in part, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
      2. Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008); Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).
  3. THREE: User Generated Content (UGC)

    1. User generated content is just that: content contributed to a website by a user of that website. A blog policy may want to address what type of language and topic are acceptable or prohibited.
    2. A blog policy should forbid users from contributing any UGC to which they don’t own the intellectual property rights to.
      1. The Digital Millennium Copyright Act (DMCA), 15 U.S.C. § 512, provides for limited immunity from copyright infringement to internet service providers if they adhere to the safe harbor guidelines set forth in the statute.
    3. Please consult the handout “Checklist for Drafting a Blog Policy for an Association Website” for suggested terms and provisions regarding UGC.

Employee Social Media Policy

Another area where associations can manage risks and potential legal liability is by creating and sticking to a social media policy for employees. In my opinion, the most important tool for implementing an effective social media policy is employee training so employees are clear as to what is and is not acceptable.

Some risks and liabilities that pertain to employers include privacy, harassment, trade secrets/confidential information, false endorsements, and intellectual property violations. Here are three main things to consider when drafting an employee social media policy:

  1. ONE: Define Scope

    1. How is “social media” defined? To what activity does the employee policy pertain?
    2. Does the employee policy pertain to employee activity while at work or away? On personal social media sites or work-related sites?
    3. Please consult the handout “Checklist for Drafting an Employee Social Media Policy”.
  2. TWO: Notice

    1. What should be the employee’s expectation of privacy in regards to their activity using social media?
    2. Make it clear: employees have no expectation of privacy regarding content it makes public on the Internet. Notify employees as to the type of monitoring that will be performed.
  3. THREE: Content

    1. What kind of content, if any, are employees prohibited from posting?
    2. Using disclaimers is a way to distance an employee’s content from the association.

REALTOR® Code of Ethics and Membership Marks Policies

  1. The Code and use of the REALTOR® Marks in Association Social Media Activity

    1. The Association as Role Model
    2. Structuring Association involvement to facilitate compliance
  2. Authority from the Code of Ethics and Standards of Practice:

    1. Standard of Practice 1-2 states, in part: “The duties imposed by the Code of Ethics encompass all real estate-related activities and transactions whether conducted in person, electronically, or through any other means.”
    2. Article 2 states, in part: “REALTORS® shall avoid exaggeration, misrepresentation, or concealment of pertinent facts relating to the property or the transaction.”
    3. Article 12 states: “REALTORS® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other representation. REALTORS® shall ensure that their status as real estate professions is readily apparent in their advertising, marketing, and other representations, and that the recipients of all real estate communications are, or have been, notified that those communications are from a real estate professional.”
      1. SOP 12-8 states: “The obligation to present a true picture in representations to the public includes information presented, provided, or displayed on REALTORS®’ websites. REALTORS® shall use reasonable efforts to ensure that information on their websites is current. When it becomes apparent that information on a REALTOR®’s website is no longer current or accurate, REALTORS® shall promptly take corrective action.”
    4. Article 15 states: “REALTORS® shall not knowingly or recklessly make false or misleading statements about competitors, their businesses, or their business practices.”
      1. SOP 15-2 states: “The obligation to refrain from making false or misleading statements about competitors’ businesses and competitors’ business practices includes the duty to not knowingly or recklessly repeat, retransmit, or republish false or misleading statements made by others. This duty applies whether false or misleading statements are repeated in person, in writing, by technological means (e.g., the Internet), or by any other means.”
  3. What precautions, if any, may associations want to take to protect their members from possible violations?

    1. Educate members on the potential violations
    2. Screen content before posting
    3. Require registration / no anonymous posts
    4. Make the blog private (not open to the public)
    5. Clearly-defined and consistently-executed takedown procedure
  4. REALTOR® trademarks in usernames

    1. The rules governing the use of the REALTOR® marks are the same regardless of the medium in which the marks are being used.
      1. REALTOR® marks must be used with the name of a member or with the legal name of a member broker’s real estate business.
      2. REALTOR® marks may not be used with descriptive words or phrases.
    2. Two exceptions to rules for use of the REALTOR® marks on the Internet:
      1. Requirements to use capitalization and the registration symbol “®”with the REALTOR® marks are relaxed.
      2. When used in a domain name or username, the REALTOR® marks need not be separated by punctuation from a member’s name or real estate business name.
    3. Examples of Acceptable Uses and Unacceptable Uses
    4. NAR Trademarks Social Media Toolkit for AEs is available on REALTOR®.org on the Law & Policy page.