Social Networking, User-Generated Content & Risk Management

Web 2.0 and social networking are powerful and exciting advances in marketing strategy and implementation. Facebook, MySpace, and others demonstrate just how effective and lucrative new media marketing can be.

In part, new media marketing success depends upon effective community-building and that, in turn, depends upon content generated by members of the target community.

GoSleepGo.com is a new, fun, and edgy example. It's a user-built online travel guide in which far-flung 20-somethings (generally) go around the world and log on to post their travel photos and comments. Here's a user adventured posted about North Korea's Propaganda Village. BACKGROUND: GoSleepGo won first prize in the 2007 University of Idaho VIEW Business Plan competition put on by the College of Business & Economics.

Online contracts governing users' conduct and interaction with the marketer's Web site (consumer agreement titled "terms of use," "acceptable use policy," etc.) are fundamental instruments in limiting legal risk. Along with other online contracts that govern user conduct on their sites, Facebook and MySpace's general terms of use provide good examples of these risk management instruments.

That said, a online marketer may be well-advised to operate under an affirmative duty to monitor user content posted by members of its target community or to respond promptly to complaints sent to customer service email addresses.

In a recent example of the former, a Web marketer designated an individual as a discussion moderator. In the course of one of these discussions, the moderator then allegedly libeled one of the parties to the discussion. Under an agency theory, the marketer (principal) could be held responsible for the libelous conduct of its moderator (agent).

One recent example of the duty to respond to emailed complaints, a MySpace participant posted an invitation on his profile to view sexual content featuring minors and also posted links directing viewers to those postings on XTube, a pornographic site. In that instance, MySpace responded and terminated the poster's participation in its community. XTube, however, was non-responsive to complaints until the federal criminal authorities were involved.

Online marketers may face other legal risks as a result of user-generated content, including, among others:

1. Infringement of trademarks or copyrights;
2. Privacy violations;
3. Invasion of publicity rights; and
4. Consumer protection violations, including posting of false or misleading advertisements.

In addition to excellent consumer agreements, a number of other best practices can go far to limit risk associated with user-generated content. For more information, please contact us at info@technologylawgroup.com or 208.939.4472.