By Cliff Ennico
“I am a social media marketing consultant. Basically, I help small businesses and others build a marketing presence on Facebook, LinkedIn, Twitter, Pinterest and other social media websites.
Normally, I just set up the client’s pages on these sites and post content to them whenever the client sends me material to post. For example, a restaurant will send me their evening specials and I will ‘tweet’ those on Twitter.
Lately, however, a couple of clients have asked me to generate original content for their social media posts because they don’t have the time to do this themselves. The money they’re offering is fairly tempting, but I want to be sure I’m not putting myself or my reputation at risk by doing this.”
This sounds like a great opportunity, but you will have to be careful how you go about doing this work.
Right now, you don’t have a lot of liability, because you are merely a “conduit” for your client’s content. When I look at your client’s Facebook page, I see only information and content generated by your client, not you.
Your clients can get into a lot of trouble, however, if they send you content that is illegal or otherwise is going to create legal problems for them. As an “expert” on social media, it is your duty to review the content they send you and warn them of any potential problems before you post the content online. Also, your standard contract with your clients should have an “indemnity clause” saying that the client, not you, is solely responsible for the content they are asking you to post on social media. That language should guarantee that:
- The content is original, accurate and complete;
- The client is the owner of copyright to the content;
- The content does not infringe anyone else’s copyright (in other words, the client didn’t steal it from the original creator or copyright owner);
- The content is not offensive and does not libel or slander any individual or group; and
- The content otherwise complies completely with the law.
Your contract should also say you have the right to pull any content offline if you receive notice that the content is problematic (although that’s very difficult to do on most social media websites – once something is posted there it usually stays there forever).
Your relationship with the client will change completely once you start creating original content for the client’s social media pages. First, some social media sites (such as Facebook) expressly prohibit “ghostwriting” of content in their user’s agreements, so check these first.
Second, as the author of the content and an independent contractor to your client, you own all the intellectual property rights (such as copyright) to the content. If the client is smart (or has a smart lawyer) they will want you to assign your copyright to them once they pay for the content. By doing that, you are selling and giving up all rights to that content. You cannot use that same content for another client, or for yourself (for example, as part of your marketing portfolio), without the client’s permission.
Because of that, you should insist on an “acknowledgment” or “credit” clause in your client contract saying that although the client owns copyright to the content, they will not use it without giving you due credit online. If you are taking photos for your client’s social media page, the photo will be accompanied by a standard “photo credit” acknowledging you as the photographer. If you are writing articles for the page, your byline will appear underneath the article’s title. You still won’t be able to use the content elsewhere, but at least your authorship will be recognized.
Lastly, because you are now the author of the content, it is your responsibility to guarantee to the client that they won’t have legal problems because of the content you create. That “indemnity clause” we talked about putting in your client contract will now be turned around and pointed directly at you. Before sending any content to the client for review, you will need to make 100% sure that the content is original, that it doesn’t infringe anyone else’s copyright, that it won’t offend anyone, and so forth. Make one mistake, and you’re the one who will have to fight the battle in court.
Some clients – your more established ones – may also require you to obtain “publisher’s liability insurance” in case your content creates legal problems for them. Such coverage is not cheap and may run you a couple of thousand dollars a year in premiums.
So, should you write content for your clients’ social media pages? Unless you are intimately familiar with the client and its business, I would say “no”, unless the client agrees to approve every piece of content in writing before you post, and absolves you of any legal liability for the content once they give their approval.
Cliff Ennico (www.succeedinginyourbusiness.com), a leading expert on small business law and taxes, is the author of Small Business Survival Guide, The eBay Seller’s Tax and Legal Answer Book and 15 other books. Follow him at @cliffennico.