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disclosure conspicuous in a particular medium (e.g., Twitter), then you should not run the ad in that medium. For
example, disclosures on your website or in social media may be sufficiently clear and conspicuous when your site
is viewed on a desktop but may not be sufficiently clear and conspicuous when viewed on a mobile browser such
as a smartphone or tablet.With the explosive growth of social media and the need for careful drafting to avoid FTC
scrutiny, this is a rapidly-changing area of the law and you should consult with your attorney concerning social
media advertising. Regulators actively monitor social media. The FTC entered into five consent decrees in March
2012 with dealers for deceptive advertising and the majority of the 10 consent decrees entered into in January
2014 involved social media as well. The ads came to the FTC’s attention as a result of FTC staffers searching the
Internet and finding the offending ads on
youtube.com. There were no consumer complaints nor any evidence
that any consumer was deceived. The CFPB is also very savvy in monitoring social media sites and has indicated it
does so to identify complaints against companies for the purpose of bringing enforcement proceedings.
If your dealership plans to open its own social media site, or if
your employees access and use such sites, it is a good practice
to adopt a Social Media Policy. Such a policy needs to balance
the dealership’s right to protect its image and confidential
information against the employee’s protected speech, such as
speech intended to organize labor unions or engage in concerted
activity. Some guidelines for a Social Media Policy are to define
social media broadly to include all social networking sites, blogs,
photo or video sharing sites and chat rooms. Make it clear that
the dealership is monitoring employees’ social media usage on
the dealer’s site and from dealer-issued PCs and mobile devices,
and encourage employees to be responsible and vigilant with
their own personal pages. You should identify with specificity
categories of prohibited topics such as, dealership financial
or pricing data, customer information and a catch-all of “other confidential information.” Prohibit disparaging
comments about the dealership, customers, other employees and offensive or legally actionable statements.
Employees posting on an auto-related site need to make clear that their postings are their own and not those of
the dealership and you should identify restrictions for using social media during company time. The policy should
list consequences for violations, including termination of employment, and identify a person at the dealership
responsible for social media and whom an employee can consult about the Social Media Policy or a prospective
posting, prior to their posting it. However, you need to be careful that your Social Media Policy does not violate
federal labor laws by prohibiting “concerted activities”by employees such as discussing job terms and conditions.
The National Labor Relations Board (NLRB) struck down a Social Media Policy in October 2012 that contained
unqualified prohibitions on making disparaging comments and restricting all communication with the media as
violating Section 7 of the National Labor Relations Act, the section that protects employees’ rights to engage in
concerted activities. From an employment perspective, you should consider how your Social Media Policy handles
employees’ negative posts or, more importantly, the leak of sensitive information. Employers should consider
having procedures in place to investigate and address potentially damaging posts. While certain laws, e.g. the