As we have helped businesses launch their exciting, new Facebook Pages, we’ve learned that there are some common concerns with Facebook’s rules. For this article, we have picked out five key issues for your company to consider. Ideally, your company will discuss these issues with your employees before your Page is launched, but even if you already have a Page, it is not too late to reduce your company’s legal risk in several areas.
Issue 1: Did your employee set up a Page, a Group, or a Profile?
Hopefully, the answer is a Page. We will explain the terminology and then the reason why a Page is the best option for business use.
Facebook Pages provide a way for “[a] public figure, business, or brand … to share information, interact with their [sic] fans, and create a highly engaging presence on Facebook.” Private individuals create Profiles to share information with their Friends. Businesses create Pages, and instead of Friends, Pages have Fans. Anyone can create a Group and can set it up to have open or closed membership.
Pages have a Wall, where the owner and Fans can, if the owner allows it, post content including comments, photos, and videos. (For an example of a Page with only basic content, check out the Procter & Gamble Page; for a Page with some extra content, check out the Coca-Cola Page.) Unlike a Profile, a Page must be publicly available and must share all content with all Facebook users. Pages can only be created and maintained by an official representative of an organization, and Profiles can only be created and maintained by a private individual.
For a number of reasons, businesses will usually want to have a Page rather than a Group. For example, Pages can communicate with an unlimited number of Fans; Group messages are limited to 5,000 people. Page administrators' identities are shielded; Group administrators' identities are disclosed. When the administrator of a Page posts a comment, it appears to come from the company; when a Group administrator posts a comment, it appears to come from that individual.
The way this issue can trip up your company is that a Group can never be converted into a Page. If your employee sets up a Group and gets lots of people to join it and sets up a great infrastructure for your company on Facebook, but then your company realizes that it really would prefer to have a Page, it cannot convert the Group into a Page. Its only option is to set up a Page and notify the Group members and have them re-join as Fans – a sure way to lose some people in the process.
Issue 2: Will your company be liable for user-generated content?
Once you launch your Page, Fans may be allowed to post comments, photos, and videos. What if one of those comments, photos, or videos infringes someone else’s copyright? If your company has allowed user-generated content on its main website, it has probably protected itself by complying with the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). It may want to consider protecting itself under the same law on its Facebook Page.
Issue 3: Does your company have to do anything to protect its Fans’ privacy?
“But,” you may say, “Facebook prohibits children under 13 from using the site, and I can age-restrict who is able to see my Page via the Edit Page Settings menu. So why should I worry about COPPA?” Facebook’s age restrictions give only false comfort. Anyone can sign up for the site using any date of birth; Facebook does nothing to verify identities or ages. In addition, people who may or may not be the parents of the children in question post information about children under age 13 often, both in their personal Profiles and on Pages. We have seen, for example, videos of children posted to Pages, with tags or comments containing identifying information about the children. The person posting the video generally says he or she is the child’s parent, but there is no way to verify this within Facebook. A child’s full name alone is enough to trigger a COPPA violation, so the risk of inadvertently violating the law is high, especially for companies whose products are marketed to the under-13 set in the real world.
Privacy considerations bring up one more issue on Facebook related to Issue 1 above: organizations are prohibited from maintaining a Profile instead of a Page. This is for the very good reason that the owner of a Profile has access to a great deal of personal information about any Friend, depending partially upon the Friend’s privacy settings. A Page, however, has access only to Fans’ names, possibly their photos, and the fact that they are Fans, unless the Fan affirmatively chooses to provide additional information. Your organization could inadvertently collect information from Facebook users that it cannot use and does not want, if it maintains a Profile instead of a Page.
Issue 4: Is there anything special your company should consider before setting up an account?
Pages are administered via people’s existing personal or business Facebook accounts. Each Facebook account must be maintained by only a single individual; Facebook’s policies prohibit sharing or transfer of accounts. However, Pages may have multiple administrators. Each administrator has full edit rights and can add or delete other administrators. The only administrator who cannot be deleted is the one who started a Page. So if you have an employee start a Page for your organization, s/he will always have full edit access to your Page, whether the setup is done via a personal or a business Facebook account.
In sum: an account set up to start a Page is the property of the employee who sets it up and cannot be transferred to another employee. Multiple employees also cannot administer a Page via the same account, whether it is a business account or a personal account. Employees who maintain both a personal account for personal use and a business account for use in association with maintaining your Page risk losing both their personal and business accounts.
Companies are currently grappling with who should be the administrator who starts a Page and whether they need a written agreement with that person to protect the company’s interests. Employees are currently grappling with whether they want to use their personal Facebook accounts to manage projects for their employer and/or their employer’s customers.
Issue 5: Are there any quirky rules of which your company should be aware?
Facebook prohibits users from running contests on Facebook without written permission from Facebook. In our experience, Facebook often takes months to respond to inquiries, if it ever does so. Contests are also subject to the Facebook Promotions Guidelines, which are short, sweet and straight to the point: you cannot promote your contest as being on Facebook, indicate that Facebook has approved or is affiliated with your contest, or administer the contest on Facebook unless it is via an Application on the Facebook Platform. We will save the complicated rules governing Applications for another time. If your company wants to run a contest on Facebook, it will require significant lead time and research to comply with Facebook’s rules.
Business adoption of Facebook is moving at light speed. We hope that Facebook will amend some of its rules to make them more realistic and helpful for business use. In the meantime, companies should work closely with their legal advisors to protect themselves to the greatest extent possible as they leap into the social networking world.
October 9, 2009