The Small-Business Owner's Guide to Advertising Injury


Chapter 8: Beyond Advertising Injury: What's Illegal on Social Media?

Advertising liability lawsuits are not the only way small businesses can get into trouble with social media. While social media defamation suits can be expensive, they typically play out in civil court. With other kinds of cyber offenses, however, small businesses could find themselves facing criminal charges, which can come with costly fines and even jail time.

Read on to find out how a single social media post can lead to costly court cases and criminal charges for a small business — and how to keep your business out of trouble.

An Increase in Cybercrime

According to the Wall Street Journal's article, "Annual U.S. Cybercrime Costs Estimated at $100 Billion," cyber attacks, hacks, and harassment are on the rise — and they're costing people big-time. From the high expense of litigation to sort out losses and fines to repairing relationships with the public, businesses can suffer major financial losses from their online comments.

But some digital offenses are more than just expensive. Some qualify as crimes. Let's take a look at some offenses you may inadvertently commit when you market your business's products or services on social networking sites. In addition to triggering an advertising injury lawsuit against your business, any of these offenses could lead to criminal charges.

Obscene Electronic Communication

When it comes to cybercrimes, "obscene electronic communication" refers to unwanted and persistent contact over the phone or Internet (i.e., email or social media interaction). Even if you hire a company to tweet or interact through social media on behalf of your business, you could still be held accountable if the recipient finds the communication to be…

  • Harassing.
  • Annoying.
  • Molesting.

Your company can be prosecuted for committing obscene electronic communication if the state can prove that…

  • You made electronic contact or caused contact to be made repeatedly. Though "repeatedly" is subjective, your state will define what number of touches qualifies as too much. In Massachusetts, for example, this means three or more times.
  • The sole purpose of making repeated electronic contact was to harass, annoy, or molest a person or their family.

Many jurisdictions don't care whether or not a conversation ensues for the offense to be punishable. Penalties for the crime range from fines to imprisonment, but the punishment depends on where you live.

And there are other obscenity laws to bear in mind, too. More than 25 jurisdictions in the U.S. ban certain kinds of speech. For instance, when publishing content online, you could be subject to legal action if you post racist, politically subversive, seditious, or inflammatory material that could incite hate crimes.

Again, legal consequences depend on where you live. But it only takes one person or one group to see your comments as obscene (or slanderous or libelous) for you to be faced with an advertising injury lawsuit or worse.

Cyber Stalking / Cyber Harassment

Other potential cybercrimes to be aware of are cyber stalking and cyber harassment.

  • Cyber stalking is the use of the Internet, email or other electronic communications to stalk a person. "Stalking" refers to a pattern of threatening or malicious interactions or behaviors. To be considered cyber stalking, the threat of harm must be credible. Legal sanction for the crime can range from misdemeanors to felonies. In Mississippi, for example, a cyber stalking conviction is an automatic felony with a $5,000 fine or two years in penitentiary — or both.
  • Cyber harassment typically doesn't involve a credible threat. Rather, cyber harassment refers to threatening or harassing email messages, instant messages, blog entries, or websites that torment an individual.

As a rule, any electronic comment that may be found derogatory or offensive could be considered harassment. This is a reminder to be careful about what you post online, as the legal consequences may be surprising and hurt your business's public reputation.

To find out what your state's cyber stalking and harassment laws are, check out the chart "State Cyberstalking and Cyberharassment Laws," by the National Conference of State Legislatures.

Next: Conclusion

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