Jason R. Klinowski and Andrew L. Goldstein, attorneys at Freeborn & Peters, LLP in Chicago, say all of these can be summed up or posted as “Legal Terms.” Klinowski warns, however, that companies should have terms customized to their particular needs and stay general or broad in scope, to avoid the “it’s not listed so it’s not covered” loophole. But “no one is too big or too small,” he says, “to take the risk of not doing it appropriately.”
Further, Klinowski clarifies that the “application of these rules to a food company is going to be different from a company that produces anything else, just because of the way the U.S. Food and Drug Administration (FDA) Food, Drug, and Cosmetic Act is written.” Citing the example of food bloggers, Klinowski says the FDA is paying closer attention to the kinds of information disseminated.
Goldstein stresses the importance of a clearly defined privacy policy, detailing the types of information you collect from website users and how you plan to use it. Some states, including California, require such policies. One such example is letting users know their email address will be added to a marketing list; more often, Goldstein says, it’s about granting permission for cookies to track or store information about web browsing.
The good news, according to Goldstein, is that legal terms on websites are being upheld by the courts. “If you go to a website and see ‘Terms of Use’—by using that website, you agree to those terms. Those click-through ‘I Agree’ boxes that nobody reads—those are binding too.” Such terms, however, do not protect you from everything: “You’re not going to be able to use a disclaimer to get past your own gross negligence or misconduct,” Goldstein explains. Liability can be limited, however, by using such terms as “as is” for downloads like recipes, which means use is at the visitor’s own risk.
Social Media and Interaction
While social media can have many positive effects, there are certainly negatives. “No doubt about it,” Almy promises, “social media will open the door for interactions that are uncomfortable or difficult.” And “the number-one pitfall” according to Almy is a company’s failure to address negative feedback. While there are sometimes legal reasons why a company is unable to respond, particularly to food safety issues, she says there are a number of ways to acknowledge a complaint or concern, and timing can be critical. “Working with our clients, we’ve dealt with very negative feedback and been able to turn people into advocates for our product.”
Oelhafen says it is important to learn “how to partake in the [online] conversation to properly defuse customer angst and provide solutions in a public forum. If you have a customer who goes on Facebook to complain, you tell them you want to fix it, and ‘please call me’.”
Internal and External Controls
From a legal standpoint, Goldstein says social media has an internal and an external component, both of which should be considered. Internally, there must be a policy for employees. “You want to be sure employees are using social media in a proper way, not disclosing trade secrets, and not saying anything derogatory about
competitors.”
External policies deal with what you allow the public to post to your website in terms of comments, pictures, ‘Likes,’ etc. Some firms have an “Acceptable Use Policy” which prohibits posting “anything obscene, defamatory, harassing, etc.” and requires users to only post things for which they have rights, or that don’t infringe on trademarks or rights to privacy. For example, a photo posted by a user that was taken from someone else’s website without permission, would violate Acceptable Use.
