How Businesses Use Social Media
How your clients use social media will vary greatly. It’s important that you, as an attorney, get familiar with their individual accounts and who is representing the company online, to provide the most complete legal service you can.
Brand accounts. Brand accounts are perhaps the most powerful way a company connects with consumers online. They exist on behalf of the company, usually run by a social media manager or a similar position, and are quickly becoming the premier way to market products to the consumer. Typically, the social media platform verifies each of these accounts, signaling to users that it is the official page of the brand. A corporate account is likely the first account your client will create, and depending on its corporate structure, the client may maintain several official brand accounts.
Employee accounts. Your clients may take a less common approach and allow for employee accounts that speak on behalf of the company. Most often, these social media accounts provide a mechanism for leadership to make public announcements, launch campaigns, offer professional ideas, and post other similar content. Whether or not these accounts are considered representative of the company is complicated, but their potential impact on a business is unquestionable. Take, for example, Elon Musk, chief executive officer of Tesla and SpaceX. With his nearly 70 million Twitter followers, Musk is able to change the trajectory of the market with a single tweet, a power that has cost him and his companies millions in fines for using. Though this is far from the norm, it is imperative you remain aware of who represents your clients online.
Social media influencers. Merriam-Webster’s Dictionary defines an “influencer” as “a person who is able to generate interest in something (such as a consumer product) by posting about it on social media.” The influencer industry exploded in popularity as social media interest grew, and it shows no signs of slowing down. Businesses budget more and more marketing funds to pay for these endorsements, with some influencers earning well over seven figures. Entire advertisement agencies exist exclusively to pair brands and influencers for maximum consumer engagement. Your client may hire an influencer to launch a new product, embody collaborations with other brands, or just generally advertise the company.
Where Your Clients Are Posting
The social media landscape changes constantly. Keeping track of what’s in and what’s out can be difficult. Regardless, it is important that you know the platforms your clients use and how they work.
Facebook. Probably the first word that comes to mind when you think “social media” is Facebook. The company, around since 2004 but recently renamed Meta, continues to spark widespread controversy and debate. The platform is worth over $900 billion and boasts an active usership of about 2.8 billion. Facebook advertises a wide array of user activities, like posting updates, videos, and photos; direct messaging; livestreaming; and offering access to online marketplace Facebook groups.
YouTube. YouTube is an online video-sharing social media site. Founded in 2005 and now owned by Google, it is consistently one of the most visited websites in the country. YouTube allows users to like, comment, and share videos of all lengths and subject matter. YouTube may be particularly interesting to your clients because the site has become a popular place to try out and show off products.
Instagram. Launched in 2010 and owned by Meta, Instagram is best known to audiences for photo sharing. Users are able share 1 to 10 pictures in a single post. Instagram also includes functions for direct messaging, livestreaming, and posting “stories,” a photo that remains on the user’s profile for 24 hours before disappearing.
Twitter. Twitter is an app that, since its creation in 2006, allows users to “tweet” their thoughts, feelings, or, in your clients’ cases, advertisements and product offerings. Tweets are limited to 280 characters and may include photos and videos. Because of the brevity necessary to tweet, Twitter can be particularly useful when publicizing updates, announcements, or news in real time. Like the previously mentioned platforms, Twitter allows users to livestream and direct-message from the app.
TikTok. TikTok is a video-sharing app that has exploded in popularity since its launch in 2016. TikTok has 600 million active users daily, and combined with its Chinese counterpart, Douyin, over 1.2 billion people use the platform worldwide. Short-form videos are the main content posted, and an algorithm pushes tailored content to the user, as well as advertisements. Direct-messaging and livestreaming are also popular on the site.
How Your Client’s Social Media May Affect Products Liability Lawsuits
As legal scholarship surrounding social media progresses, the law will likely develop to further address the issues the digital world raises. Though your jurisdiction may vary, it is important to contemplate how social media could affect your clients’ needs. The considerations discussed below are not exhaustive; rather, they should prompt you to analyze thoughtfully any claims, defenses, or allegations that potentially are affected by your clients’ social media.
The duty to monitor. It’s not enough to just create an account; your clients need to be actively maintaining it. Companies must monitor their products even after they leave the seller. As your clients’ online persona grows, there is more ground to cover to ensure all monitoring obligations are met. The comment section and direct-messaging features on social media sites allow consumers to voice complaints or frustrations with products, and users may also tag your clients in their own posts with questions and concerns. Advise your clients to be diligent in checking these methods of communication frequently and thoroughly for potential products claims.
Knowledge. As previously discussed, a client with a presence on social media must be aware of the conversation surrounding it. Litigants may offer online comments, posts, direct messages, etc., as evidence that a company knew about a product defect. Depending on the situation, a court may also determine that a company had constructive knowledge, even if the company was not checking its profiles regularly. This knowledge may be used against your clients in cases of gross negligence or punitive damages, among other claims. When you and your clients are proactive social media participants, everyone is far more prepared to face possible issues down the line.
Foreseeability of misuse. A company is not under a duty to warn against unforeseeable uses of its product. It’s possible, however, that a product may be demonstrably misused on social media to such a degree that the company can then foresee even extremely atypical uses. Viral social media challenges are a particularly poignant example of such misuse. These challenges involve thousands of people participating in a set activity or trend and posting it online. Perhaps one of the most infamous involved the “Tide Pod Challenge” in 2018, where children and teenagers bit into colorful laundry detergent pods following videos they had seen online. Tide, its manufacturer Procter & Gamble, and several governmental agencies immediately began releasing statements warning of the dangers of the challenge, and finally the laundry detergent was redesigned to be less appealing to children. With the social media buzz, the company was able to respond quickly to a wide audience. Brands must be vigilant about how their products are being used at all times, or else even the unintended use could be judged foreseeable and your client may lose a valuable defense in future lawsuits.
Post-sale duty to warn, retrofit, or recall. The conversation surrounding a product online may also trigger other legal duties after the initial sale. If your jurisdiction creates a post-sale duty to warn, a duty to retrofit, or a duty to recall a product, the online material your client knows or should have known may trigger a need to act. With technological advances and consumers engaging in constant discussion online, a company may discover via social media that there is a product hazard that needs to be corrected. A well-informed company that is actively monitoring its social media will be in the best position to assess these potential obligations when the need arises and take action quickly to ensure the safety of those involved.
Making Social Media Work for You
Marketing and public relations are not the only ways your clients can use social media for their benefit. With proper advice, they can vastly improve the experience of their customers, as well as better their own brand.
Information collection. The flood of information online seems overwhelming at times. Your clients, however, should view this not as a burden but as an opportunity to collect data directly from consumers. Whether or not feedback is solicited, your clients can seize the chance to learn more about their product’s reception. The company that organizes this information and documents it accordingly is best prepared to discuss issues with costumers, other businesses, and even regulatory agencies when the need arises.
Recalls. Social media pages are excellent places to inform customers of issues and recalls. In fact, the Consumer Product Safety Commission expects companies to use their social media platforms to notify consumers of a recall. Pinning this sort of announcement in a prominent place on a brand’s page lets a business reach audiences quickly and effectively. These posts should be concise and clear, informing costumers exactly what ought to be done going forward. The direct-messaging function can also be a great way to answer consumer questions and concerns about the recall or other similar actions.
Video tutorials. A helpful addition of most social media platforms is the video-sharing function. With it, your clients are capable of showing customers how the product should be handled by demonstrating best practices and safety features. If customers seem confused, a social media platform provides an instantaneous ability to mitigate confusion.
Advice Your Clients Need to Hear
If your clients are online, reminding them of a few points can save everyone time and effort later on.
Monitor regularly. Keep tabs on your own posts, comments, and direct messages. Online platforms are immediate, and tides can change overnight. Search tags and topics related to your product to find content that may not be immediately apparent. Just because it isn’t on your page doesn’t mean material isn’t out there.
Designate responsibility. With something as vast as the internet, you need policies and procedures in place for handling social media forums. Evaluate your needs and your capacity to create a viable plan before expanding social media presences.
Save what you see. Collect and document any online material that pertains to your product. Someone must be keeping track of feedback and organizing information.
Engage with consumers. If something does not seem right, reach out to consumers early to discover useful commentary and investigate potential problems. Ignorance is not bliss.
Post thoughtfully. The classic advice—the internet lasts forever. A brand’s content online may reach millions. Use that engagement to your benefit, not your detriment.
