Endorsement is the currency of social media. Individuals and companies alike create content for social media, not for immediate monetary gain (though that may be an ultimate goal) but for “likes,” “+1s,” “favorites” or whatever other indicator of approval their chosen platform provides. A step up from these simple, virtual up-votes is the “share,” the highest expression of appreciation for a social media post. A “share” represents the decision not only to support the content, but to pass it on wholesale to one’s own audience through whatever mechanism is available. Whether this is called a share, a link, a reblog, a repost, a retweet or any of a multitude of other names, lawyers recognize it as a republication. Republication is what makes social media social, and, when it takes off, it can introduce content to large, diverse audience pools that would otherwise have little in common.
Savvy, youth-oriented companies have known all of this for years and have long included social media as an integral part of their marketing strategies; more mainstream brands have been quick to follow. The fondest hope of these companies is that some piece of their content goes “viral”—that it is picked up by Internet opinion-makers and shared across thousands of heterogeneous demographic networks leading to massively increased brand awareness and sales. But the flip side of explosive approval is unbridled complaint, and social media can end up being an arena for some very harsh, gloves-off commentary. When a client becomes involved in that kind of battle—or when it chooses to take a side in one—counsel may be asked to provide answers to some tough questions: What can I say online without incurring legal liability? Can I republish what someone else has said? How do I do that, exactly, in my chosen form of social media?
