Association Social Media -- Is Permission Required To Post User Content?
© August 2012, Reprinted with permission from Association Media & Publishing.
As user-generated content becomes a growing source of information on the Internet, associations should be mindful of the potential legal problems that relate to using user-generated content. For example, if John Smith posts comments on an association’s website or social media page, can an association use John Smith’s comments in the association’s newsletter without contacting John Smith for permission?
There are a number of legal issues that may relate to the question above. For example, the person who posted the comment (the “poster”) may have a copyright infringement claim against an association if the subsequent publication of his or her comments was unauthorized. The poster may also have a “privacy” claim against an association if the publication harms him or her personally. In addition, the poster may have a “right of publicity” claim against an association if the publication caused damage to the commercial value of the poster’s identity.
To avoid potential liabilities, it is always a good idea that an association seek permission from any poster before publishing his or her comments. That being said, it’s possible that the poster cannot be reached, or does not respond to an association’s requests. Sometimes, an association simply does not have the resources to seek permission from every poster. As this area of law continues to evolve, it doesn’t appear that courts have rendered rulings specifically on point.
Nevertheless, if sufficient notice is provided that by posting on an association’s website or social media page, the poster grants to the association permission to use the content, it should be defensible for the association to use the poster’s content without seeking specific permission. Below is a summary of how an association can minimize the risk of being exposed to legal actions arising out of publishing user generated content.
Comments posted on an association’s website
Many associations permit users to post comments on their websites. It is strongly recommended that an association have website “terms of use”. As the terms of use essentially constitute contract between an association and its users (i.e. posters), the terms should explicitly state that by posting information on the association’s website, the poster grants to the association the right to use and commercialize anything submitted/posted, without further consent, notice, or compensation to the poster. This type of “license” can be implied, and does not require an individual and specific written permission.
Some associations only permit users with user accounts to post comments on their website. Requiring that a user account be established prior to posting may be a good option. First, through the user account, an association can establish a channel for further communications with the content poster. Second, by requiring a user account, an association will have the opportunity to remind the poster that he or she is consenting to the association using the posted comments, possibly through a “click-through” agreement indicating acceptance of the association’s policies.
Comments posted on an association’s social media platform(s)
In addition to an association’s website, many associations participate in third party social media sites by creating “pages” or “groups” managed by the association staff. Similar to the terms of use on an association’s website, the social media site’s terms of use operate as a contract between the specific social media sites and its users. A further examination of the terms for two of the commonly used social media sites, Facebook (http://www.facebook.com/policies/) and LinkedIn (http://www.linkedin.com/static?key=user_agreement), are set forth below:1
Facebook has a comprehensive list of legal guidelines, policies, and statement of rights and responsibilities that apply to all Facebook users. Most associations with a Facebook presence have “Pages,” which are considered “public pages.” Facebook users are advised that if comments are posted on a Page, those comments may be used by the Page owner off Facebook, and that anyone can see it. Facebook’s terms further alert the users that choosing to make the information public also means that the information can be associated with the poster, and can show up when someone does a search on Facebook or on a public search engine.
LinkedIn’s terms of use also explicitly communicate to the users that content posted on LinkedIn may be seen and used by other users. Therefore, if the user wishes to keep certain information confidential and/or doesn’t want others to use the information, then they are advised not to post it to any LinkedIn Group, the user’s Network Updates, or elsewhere on LinkedIn.
By using these “terms of use,” social media sites make clear to users that content posted on a public page will be public, thereby minimizing the risk of facing copyright infringement, right of publicity or privacy claims. Since an association’s social media platform is generally set to be public, the same principles would apply. However, these sites don’t specifically grant the association rights to the posts.
So, with regard to the issue of obtaining consent from the poster, it is recommended that an association make its own terms of use explicit on such social media platforms that by posting information on the association’s social media page/group, the poster grants to the association the right to use and commercialize anything submitted/posted on the social media page/group, without further consent, notice, or compensation to the poster.
Posting/sharing other materials on an association’s website or social media
Finally, Internet users of either an association’s website or its social media platform may share certain copyrighted materials other than individual comments/remarks. In that case, an association should always seek permission from the original copyright holder prior to using the materials in the association’s publications, whether print or electronic.
In conclusion, an association is not required to seek specific permission from every poster if the association’s terms of use and related policies provide sufficient notice to the user that the association may use any posted content for commercial use, by which the poster grants a license to use such content. Nevertheless, when possible, the most conservative course of action is that an association seek permission from a poster before publishing the content.
1. It should be noted that Facebook and LinkedIn frequently update the various policies and statements. As such, an association should review the user terms on a regular basis.