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FMG Law Blog Line

A Picture is Worth a 1000 Words

Posted on: April 30th, 2014

By: Seth Kirby 

In the ever evolving world of marketing through social media, companies strive for ways to drive traffic to their virtual doorsteps.  The constant question running through the mind of a person tasked with internet marketing is “what can I post that will interest my target demographic?”  The desire to answer this question, coupled with the ease of posting to social media, generates some very creative, and often ill-advised posts.  One of the most recent examples of an ill-advised post has been provided by the social marketing team at Duane Reade drugstores.

In an attempt to engage their followers and increase the “cool factor” of shopping in their stores, Duane Reade tweeted a link to a paparazzi photo of actress Katherine Heigl.  The photo showed Ms. Heigl leaving a Duane Reade store carrying a couple shopping bags.  Accompanying the link, the tweet read “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC‘s favorite drugstore.”  At first blush, this tweet may appear to be a great use of the medium, generating buzz for the brand by showing that the store is poplar with a celebrity.  There is just one problem, while the tweet may have generated some social media buzz for Duane Reade, it definitely generated a lawsuit against the company.  Within a month of the tweet, Katherine Heigl filed a lawsuit against Duane Read claiming that the tweet invaded her right of privacy and publicity and “exploit[ed] Ms. Heigl’s image for commercial gain.”  Ms. Heigl is seeking $6 million in damages for these alleged violations.  It is safe to assume that Duane Reade’s marketing team did not set out to embroil the company in litigation with their pithy observation.  Unfortunately, that is exactly what their social media marketing effort has done.

So what can we learn from this case study?  If you are a business using social media to market your company, be mindful of the potential consequences of your posts.  As demonstrated by the Heigl matter, it would be prudent to get the permission of your customer before you use his or her image to promote your business.  Consider whether the statement that you are about to make could be considered libelous, an implied warranty regarding your goods or services, or misleading.  Of course, in order to consider the potential consequences of your social media posts, the person or persons in charge of posting to your social media accounts should be a trusted employee that has been trained regarding the use and pitfalls of social media.  While the new college intern may have a great sense of what will generate buzz on the web, he may not the best person to determine the appropriateness of your posts.  Supervision and training can be valuable tools to mitigate the serious risks posed by social media marketing.

With regard to risk mitigation, businesses and insurers must realize that the use of social media as a marketing tool is evolving and perilous.  Innocent attempts to generate buzz can and will be viewed as actionable torts.  Traditionally, Ms. Heigl’s suit would be entitled to coverage under a commercial general liability policy as a suit seeking damage for advertising injury.  Many current polices, however, may seek to exclude coverage for “cyber liability” exposures.  Undoubtedly, the wording of such exclusions will be subject to great scrutiny in the coming years, but if they validly exclude advertising injury claims arising from the use of social media, then many business may not be adequately protected for the risks posed by their use of social media.  Obtaining a policy specifically tailored to cyber liability exposures may be the best solution.

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