When I first wrote about libel and defamation in 2001, Facebook had yet to be invented. When my book. The Law of Libraries and Archives, came out in 2007. tweeting was only for the birds. Certainly, Facebook, Twitter and other new social media tools have had a significant impact, both on society and on the practice of librarianship. The legal implications of these tools are arising not from new laws, however, but from existing laws being applied to new situations.

For example, the right of privacy was first articulated by future Supreme Court Justice Louis D. Brandeis and his law partner, Samuel Warren, in a famous 1890 Harvard Law Review article. Today, the principles discussed in that article are being applied to everything from photographs of library events to Twitter posts.

Privacy law, while important, is not the only legal issue related to social media. Copyright concerns are always present in this area, and it is possible to run afoul of defamation law. Organizations should also be careful not to let out trade secrets through social media. In some situations, blog postings by employees may expose an organization to liability.

I do not mean to imply that social media should be avoided; in fact, I am very much in favor of using Twitter and Facebook to promote library activities and share knowledge. Throughout my career, however, I have found myself repeating the same warning over and over. A little knowledge can be a dangerous thing. Translation·. Go ahead and use social media in your libraries - but use them thoughtfully, implementing proper policies ahead of time to avoid problems in the future.

Contests, Endorsements, and User-Generated Content

Many organizations have begun holding contests with social media such as Facebook, YouTube, and Twitter. For example, you might ask clients to generate videos, with the winner getting a prize. This is a great way to get your clients involved in marketing, but it raises several legal issues.

First, it is important to review the policies of the social media site you are using. For example, you must obtain written approval from Facebook before conducting or advertising a promotion on Facebook. In some cases, you must use specific language when promoting your contest. Facebook also mandates that contests be open only to users who are 18 and older. (I have occasionally had to remind our public library colleagues that this means they shouldn't sponsor a Facebook contest for their young adult readers.) I recommend reading the terms of service and promotion guidelines carefully before engaging in any type of contest with social media.

Be cautious about using endorsements and user-generated content, because they present some significant potential legal pitfalls. For example, suppose you receive a YouTube video starring John Doe. Did he produce this video entirely by himself? Who held the camera? Who wrote the script? Was there a director? Under copyright law, the person who wrote the script owns that part of the copyright, while the videographer may own the copyright to the "film version."

Attorney Deb Peckham (2010) offers the following advice when dealing with user-generated content:

Of course, most companies are well aware that copyright issues lurk behind [user-generated J content and warn contestants not to use, for example, third-party music or video clips without express authorization. However, many people forget that under copyright law, if someone else held the camera, wrote part of the script or even appeared in the work, these other contributors also might have strong intellectual property rights of their own. Therefore, contestant forms should include an assignment of rights from everyone who helped create the content, or at a minimum, an express representation by the named entrant that he or she has obtained an assignment of rights to use all of the contributions. One way to help contestants be mindful of who contributed is to have forms that ask for explicit identification of people who helped the contestant, including the videographer and any writers.

In commercial situations, user-generated content may be affected by union contracts. For example, a YouTube video used on television or radio may need clearance from the Screen Actors Guild, the American Federation of Television and Radio Artists, and/or the American Federation of Musicians. This caveat applies only to advertisements from new media that can be re-used without modification on radio or television. It does not apply to personal endorsements or word-of-mouth advertising, which have their own legal issues.

The Federal Trade Commission (FTC) has jurisdiction over false or misleading advertisements, including those broadcast on social media. The issue here is similar to the difference between independent reviews and publishersponsored advertisements. When I write a review, I am free to say what I think. If it is my opinion, I can say that "Star Trek: Next Generation" is better than the original series, or that Captain Kirk rocks while Captain Picard's acting is a shallow parody of a Shakespearean actor. But disparaging a product with false or misleading statements may spur an investigation by the FTC.

The FTC will begin its analysis by determining whether such statements reflect the opinion of the speaker or author or whether they are attributable to the organization that sponsored them. The commission only has jurisdiction over advertisements, and it cannot find them false or misleading unless the statements can be attributed to the organization. Under federal guidelines (Federal Trade Commission 2009). this is determined by asking whether the speaker or author is "(1) acting solely independently, in which case there is no endorsement, or (2) acting on behalf of the advertiser or its agent, such that the speaker's statement is an 'endorsement' that is part of an overall marketing campaign." FTC rules mandate disclosure if a statement is sponsored or solicited by the organization, and the commission has been very aggressive in punishing failure to disclose under such circumstances.

So, what do librarians need to know when dealing with endorsements? They must understand the following principles, as articulated by Wood, Marcus and Rosen bau m (2009):

1. Bloggers and other social media users are viewed as primary disseminators of advertisements.

2. Endorsers in social media, along with the sponsoring advertisers, are subject to liability for failing to make material disclosures relating to the endorsement relationship (e.g., gifts, employment and/or other connections and circumstances).

3. The FTC appears to take the position that there is a higher threshold of disclosure in social media than traditional media, and that the endorsement relationship itself is likely to trigger the obligation to disclose.

4. Advertisers need to take reasonable steps to ensure that material disclosures are in fact made.

5. Advertisers cannot rely on the "remoteness" of the social media endorsers or on the advertiser's lack of control over them to escape liability.

6. Advertisers are technically liable for a remote endorser's failure to disclose.

7. An advertiser's ability to avoid discretionary regulatory enforcement due to the endorser's failure to disclose will be a function of the quality of the advertiser's policies, practices and policing efforts.

The most important point to remember is that you should anticipate these potential problems before you need to deal with them. As Wood and his coauthors (2009) remind us, "A written policy addressing these issues is the uest protection."

Social Media and Defamation Law

Defamation law has been around for many years, but the popularity of social media has led to a growing need to understand the topic. Suppose, for example, that I post the following statement on the library's blog: "Jane Doe's bookstore is a rip-off. They mark up their books 500 percent, and Jane kicks her dog. Use the public library instead." In reality, Jane is kind to animals and only marks up her books 10 percent. She has been accused incorrectly of being dishonest and of cruelty to animals. This has the potential to cause a lawsuit.

At this point, the library is in the clear because it didn't post the statement on the blog. As long as the library does not actively participate in or edit the post, it can avoid liability by using the service provider "safe harbor" provisions in section 230 of the Communications Decency Act of 1996 (47 U.S.C. 230). However, libraries need to be aware of how the safe harbor provisions function. The liability waiver only applies if the service provider takes down challenged materials upon request. Libraries can be held liable for promising to take down defamatory material but not actually removing it. or for repeating or further disseminating false statements. (For more information about defamation, I recommend you read my Against the Grain article on libel.)

The courts have defined defamation as, among other things, repeating the false statements of others American Jurisprudence). This definition is important to social media. I believe a library may be liable if a false statement is disseminated as a status update on Facebook. Re-tweeting is another way to get in trouble with false statements. The key to avoiding liability is (as with so many other things) to have a policy in place before problems arise and to follow this policy religiously.

Social Media and Privacy

In 2008, I wrote an article for MLS: Marketing Library Services about privacy, publicity and the legal use of photographs taken at library events (Carson 2008). That article has generated more comments, criticism, citations, and disagreement than anything else I have ever written. I recommend that you read the article, since it is available free online.

Keep in mind that privacy and publicity laws are different in every state. You should always check with a licensed attorney in your own jurisdiction to make certain you understand your local laws. My advice in this article is based on the laws in some of the most restrictive states, such as California.

In general, the right of publicity provides "... to each and every person the right to use his or her persona for his or her benefit and provides a cause of action to stop the unauthorized use of that persona for commercial purposes" (Webner and Lindquist 2004). The "persona" includes the person's name, image, voice, or any recognizable attribute (Wolff 2007).

In many states (such as California), the right of publicity prohibits using photographs from library programs to market or advertise the library or call attention to future programming. However, there is a way to get around this - shoot pictures from the back of the room, so the people in the crowd are unidentifiable. Alternatively, you can ask attendees to sign consent forms (adults can sign their own; minors should have a parent or guardian sign).

Even in California, the state with the strictest laws, there is an exception to the right of publicity for news stories. Thus, the media - not just traditional media but also blogs and some library newsletters- can use names, likenesses and images. These uses must be for the purposes of news, and only for a limited period. The University of Arizona Web Developers Group (2005) recommends not leaving photos online for more than two weeks.

Remember, though, that there is a difference between using photos for news purposes and using them for marketing. Even new media are forbidden from using likenesses for marketing purposes. This becomes important in the special library context because many companies and firms publish client newsletters that discuss and analyze current events and new trends in the discipline. The purpose of these newsletters, however, is not to inform, but to market.

For example, I quoted a few law firm newsletters in this article. While these newsletters can provide excellent analyses of the law, their real purpose is to show clients and prospective clients that the firms' attorneys are knowledgeable about the law and current developments. Depending on the state, using likenesses in this type of newsletter without permission may be a violation of the right of publicity.

Conclusion

The world of social media provides both promise and peril. We now have more ways than ever to connect people with information; however, there are many potential landmines in the world of social media. The key is to understand these concerns, plan for them, and put adequate policies in place before you need them. This approach will allow you to take advantage of all the connected world has to offer without having to fear the unknown.

RESOURCES

American Jurisprudence. 2nd ed. 2006. Libel and Slander. Eagan, Minn.: West Group.

Carson. Bryan M. 2008. Laws for Using Photos You Take at Your Library. Marketing Library Services, 22(5).

_____. 2007. The Law of Libraries and Archives. Lanham, Md.: Scarecrow Press.

_____. 2000. Libel. Against the Grain, 12(4): 63.

Guidelines for Contests on Twitter. Online guidance available at http://help.twitter.com/ entries/68877-guidelines-for-contests-ontwitter.

Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255(II)(A)(2) (2009). Available at http://www. ftc.gov/os/2009/10/091005revisedendorseme ntguides.pdf.

Nemet-Nejat, Daniel. 2010. Hey, That's My Persona!.· Exploring the Right of Publicity for Blogs and Online Social Networks. Columbia Journal of Law & the Arts, 33( 1 ): 113.

Peckham. Deborah J. 2010. Legal Risks Associated with Interactive Marketing Campaigns and Social Networks. Boston, Mass.: Burns & Levinson LLP.

Peterson. Chris. 2010. Losing Face: An Environmental Analysis of Privacy on Facebook. Online article. Social Science Research Network.

Schwartz, Kay Lyn, and Jason R. Fulmer. 2010. You Twit Face! Protecting Your IP in the world of YouTube, Twitter and Facebook: A Practical Protection Guide for the IP Owner. Dallas. Texas: Gardere Wynne Sewell. LLP.

Silverman. David. 2010. Private Eyes are Blogging You.· Social Media and the Law. CITY, STATE: Davis Wright Tremaine.

Swift. Betsy A., and Elizabeth C. Stock. 2010. Electronic "Exhibitionism" and "Voyeurism": Social Networking and the Growing Number of Employer-Related Issues. Columbus. Ohio: Bnckler and Eckler LLP.

University of Arizona Web Developers Group. 2005. Guidelines for Using Photographs of People. Online guidance available at http:// uaweb.arizona.edu/people.O.html.

Warren, Samuel D.. and Louis D. Brandeis. 1890. The Right to Privacy. Harvard Law Review. 4(5): 193.

Webner. W. Mack, and Leigh Ann Lindquist. 2004. Transformation: The Bright Line between Commercial Publicity Rights and The First Amendment. Akron Law Review. 37(2): 171-201.

Wolff. Nancy E. 2007. The Professional Photographer's Legal Handbook. New York: Allworth Press.

Wood. Douglas J.. Stacy K. Marcus, and Joseph I. Rosenbaum (eds.). 2009. Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon. New York: Reed Smith LLP.

YouTube Contest Platform Terms and Conditions of Use. Online guidance available at http:// www.youtube.com/t/contest_platform_rules.

Author affiliation:

BRYAN CARSON is professor, coordinator of reference and instructional services, and special assistant to the dean for grants and projects at Western Kentucky University Libraries. He is a member of the Kentucky and Ohio bars and has written extensively about intellectual property, access to information and legal issues relating to libraries, and he has spoken at numerous state and regional conferences. He is the author of The Law of Libraries and Archives, published in 2007 by Scarecrow Press: next year, Scarecrow will publish his book, Finding the Law: Legal Research for Librarians and Paralegals. He writes a popular column, "Legally Speaking," for the journal Against the Grain. He can be reached at bryan.carson@wku.edu.