Tighter budgets, coupled with an increasingly web-savvy public, are bringing about a sea change in the way associations engage their membership. This has resulted in the rising use of social networking and other online media as a means of building member relations and driving participation in association programs.

According to an AMC Institute survey released this week, three of five associations currently utilize social networking sites such as Facebook and LinkedIn, and a recent study found that online presence has a direct impact on the bottom line. Revenue from online sources, including e-commerce activities, increased by 25 percent in 2008. Cleary, the public is ready for a new model in association outreach.

As a result, many organizations are joining the "Web 2.0" stampede, rushing out to respond to the pace of the Internet by quickly turning out content and imposing relatively few restrictions on member comments, links and postings. While organizations should welcome, and indeed encourage, greater member participation and sharing of content, this "open" system should be balanced with common sense restrictions.

New Platforms – Same Issues, but New Challenges

Although online social media present a new platform for member communications, the core legal liabilities have not dramatically changed. Copyright infringement, antitrust and defamation concerns predominate. However, the considerations in managing these liabilities have evolved with the technology.

Whatever the platform, whether a Facebook group page on which members can post comments, photos, and materials, or a blog, listserv or bulletin board which allows the same member input, associations should have a proactive, written policy to address inappropriate, offensive or legally risky communications between association members.

Screening Content and Establishing Ground Rules for Communications

Many platforms, including Face Group and Brand Pages, allow filters and restrictions to be placed on third-party postings. In this respect, the rules for moderating content on many social networking sites are really no different than those for moderating content on your own website. However, as a practical matter, for most associations it is impossible to screen every message that is destined for an online platform, and there are good reasons for allowing free communications in connection with building a real-time community.

While laws such as Section 230 of the federal Communications Decency Act provide some liability protections to associations in this context, such protections are far from absolute. Moreover, they generally do not extend beyond defamation liability. In order to limit liability, associations should: (1) require that all participants follow established rules and conditions of participation (and, if possible make participants take some affirmative step (such as clicking, “I agree”) to state that they agree to comply with such rules); (2) if there is no click consent requiring direct consent, post the rules of participation clearly, such as on the notes section of your Facebook page; (3) make certain that such rules disclaim all warranties and guarantees, disclaim liability for damages, prohibit posting of defamatory and offensive material, prohibit the posting of material that infringes on another’s intellectual property rights, provide the association with a license to use posted materials in other formats, prohibit all posts regarding price or price-related topics, prohibit all posts that encourage or discourage doing business with one or more entities or within one or more territories or markets, and allow the association to terminate access to members who do not follow the rules; and (4) make certain that staff takes prompt corrective action in the event that inappropriate material is posted.

Defending against Copyright Infringement

Association staff must be certain that the copyright to all materials published on their websites or other hosted media is either owned by the association or owned by an individual or entity who has provided a valid, continuing license to the association for the material to be published and used by the association in all formats (print or online), for any purpose, and throughout the world.

In general, materials created by association staff will be presumed to be owned by the association, even absent any written copyright transfer. However, be very careful about materials that were produced, either for a fee or on a volunteer basis, by non-employees. It is possible that the permission to publish that was granted to the association in such instances was of limited scope, and if no express written license was granted, then a court generally would construe the implied permission very narrowly. In order to avoid confusion, disputes and problems down the road, associations should routinely obtain — in writing — broad written copyright licenses and/or transfers from authors, speakers, committee members, consultants, vendors, and the like.

In addition to obtaining copyright transfers and/or licenses from third-party authors, associations should take care that they have appropriate permission before reproducing works that were initially published in other publications. To avoid obtaining permission in such instances, some associations will decide to merely “link” to the web page that contains such other works.