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Associations Now

A Checklist for Social Media Legal Notices and Policies

ASSOCIATIONS NOW, December 2009 Intelligence

By: Jeffrey S. Tenenbaum and A.J. Zottola

Summary: Be prepared for legal concerns related to social media with this checklist.

The following is a nonexhaustive checklist of provisions to consider in connection with preparing a policy, agreement, or legal notice for use with members and others who connect, or wish to connect, with an association through an online social networking site or in connection with a more formal terms of service or legal notice for a page, site, or blog on a social networking site.

Responsibility for use. Include a provision requiring the end user to acknowledge that the association is not responsible for third-party conduct.

End-user conduct. Include a provision requiring the end user to abide by applicable laws and any online terms or conditions and to take responsibility for the end user's own actions.

License grant. Include a pre-emptive license grant given to end users for any use of the association's content, materials, or other intellectual property. Specifically, when an association encourages other users to use its name, connect to its page/site, post supporting information, or generate communications in line with the association's objectives, such use should be dictated by permission or guidelines for permissible use.

Protect intellectual property and use proprietary notices. Include a provision to reserve rights in the association's intellectual property used or displayed online and add a proprietary notice for copyrightable works and trademarks.

Postings. Include a provision that prohibits the unauthorized use or copying of third-party content as well as the posting of any unlawful or objectionable content.

Take-down policy. With interactive forum functionality, associations should have a take-down policy for removal of any defamatory, infringing, or incorrect content.

Clarify role. Include a provision to clarify the association's role in the content distribution, display, and publication process. This is especially true with respect to declaring what constitutes the official page, site, or communication of the association within an online network and it distinguishing from unaffiliated pages, sites, or communications.

General disclaimer and limitation on liability. Include a general disclaimer of any warranties the association will not offer and a contractual limitation on the association's liability.

Linking policy. Include a specific disclaimer for interaction with third-party sites.

Privacy policy. Include a cross-reference to an association's privacy policy.

Be careful with sweepstakes. For any promotion involving a sweepstakes or contest, the association should include a provision(s) setting forth the scope of permissible participants (by state) and terms and conditions for any contest or sweepstakes.

Guard against antitrust risks. Include a provision regarding the enforcement of existing antitrust policies as well as a reminder not to communicate via association-sponsored social networking to make an anticompetitive agreement (such as price fixing or market allocation), share competitively-sensitive information, or disparage vendors, suppliers, or other members.

Governing law. Claim a governing law for enforcement of the association's rights.

Jeffrey Tenenbaum, Esq., chairs Venable's Nonprofit Organizations Practice Group. A.J. Zottola, Esq., is a partner at Venable in the Business and Technology Transaction Groups and focuses his practice on intellectual property, computer, internet, new media, and technology law. Email: jstenenbaum@venable.com, ajzottola@venable.com

 

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