C3 Patent and Intellectual Property Law

Mar022011 | Steve O'Donnell

Social Media contracts

It shouldn’t be shocking to anyone that not all of the social media posts (Twitter, Facebook, LinkedIn, etc) that a company puts out are written by the CEO after a meeting of the board of directors. Some companies use internal people to maintain official accounts, others have a swarm of people handling specific aspects of the accounts, and some companies outsource that work to an external contractor. It’s certainly common to outsource marketing, but traditionally, outsourced marketing would still be approved by someone before being made public. In the case of social medial marketing, where quick and short messages are the norm, it’s just not possible to have management approve every outgoing message so it’s incredibly important to have a written agreement detailing what both parties expect from the social medial marketing in place and detailing what happens if something goes horribly wrong.

There is not much to be found online about what should be in this type of contract, which isn’t surprising. It’s a fairly new field and possible that these agreements haven’t made their way before a judge yet. The lack of guidance to be found in forms might be troubling to some, but to a lawyer that drafts contracts, this is fun, or at least as fun as drafting contracts gets, because it frees me to be creative with the work.

After reflecting on what things I post to my social media profiles, and giving some thought to what is mostly likely to go wrong I’ve come up with a few clauses or sections that should probably find their way into these contracts.

Firstly, there’s nothing particularly magical about these contracts and they’re pretty closely related to any independent contractor agreement. Therefore, I’m not going to say anything about payment, cancellation, intellectual property, independent contractor status or any of the “standard” clauses like arbitration, heading, integration, saving, etc.

•Length of average post and number or posts/time. No one wants to see someone post nothing but 2 word status updates every 15 minutes. Specify roughly how long an average post should be and roughly how many should be done per day/week/month. I say roughly, because it’s just silly to expect someone to pay a terrible amount of attention to that, but you do want to ensure that the posts aren’t too short, too often.

•Timing of posts. It might not help a business if they’re more active online in the middle of the night or if all messages go out in a burst every day. A good agreement will allow flexibility here, but make it clear that some reasonable spacing will be used.

•Content. It’s a good idea if someone at the company can feed suggested posts to the independent contracts. It doesn’t have to be a steady diet, but the business should have some regular input so the contractors know about promotions, new products, etc.

•Ratio of post topics. Not many people are going to follow a company’s social media account if all the posts are “try our new diet Slurm.” Also, it won’t help a company if all the posts are off topic. There should be some ratio to act as a guide, maybe 1/2 company line, 1/2 light small talk. That ratio will need to be customized for each outlet. Twitter is better suited for small talk, but the same kind of post would be out of place on LinkedIn.

•Disclaimers. Even with light small talk posts, the odd minor controversy can come up. The poster should be able to make it clear that opinions on who should win the World Series, etc, are their own.

•Language. Specify that things like profanity shouldn’t be used in the posts, and that the contractor shouldn’t post their personal political opinions. Hopefully no one is stupid enough to use their access to a company’s official twitter account as their own personal soapbox, but it could happen. Also, most businesses will probably want to avoid excessive text-speak. “OMFG I <3 ur lolcatz!!” might be an excessive example, but you see what I’m getting at with it.

•Terminable posts. Someone’s opinion about a sports team or the weather probably isn’t going to be an issue with anyone, but what if a poster makes a nasty remark about a politician or makes some sweeping offensive generalization? There should be some definition of what crosses the line. Actual determination of whether something is too far will have to be made by the company, but having some definition in the contract itself will keep the company from abusing their discretion.

•Damages. Hopefully it won’t come to this. But lets say a company hires an independent contractor that then hires someone that has a particularly bad day and decides to quit their job in the most flamboyant, bridge burning way they can (it happens)--so they use the LinkedIn account to defame another business, or make a very blue joke, or start discussing their bizarre “solution” to the Gaza Strip conflict--things like that might conflict with your brand identity, to say the least. The contract should have something in there addressing damage mitigation and control. Certainly the offending person should be removed from the account, but what then? The damage is done. For something like this, I might suggest a liquidated damages clause for terminable posts to ensure that the contractor is careful about who they have actually posting the content. Also, in the event of a terminable post by a sub-contractor or employee of the contractor, the contractor should offer some amount of damage mitigation, perhaps by including 10 explanatory posts for every terminable post (this might be one of the situations where fighting fire with fire actually works). Again, hopefully it won’t ever come up, but having an agreement in place is critical in case of situations like this.

I’m interested if anyone has other thoughts on what should be in a social media independent contractor marketing contract that might not be in other contracts. If you have something to add, please leave a comment. Also, if you need such a custom contract drawn up for your company, whether you're the one hiring the contractor or the contractor, E-Mail me to set up a consultation.