57 / 234
HOT TOPICS
2015 GNYADA Membership Directory
47
they appear. This is especially important since it has been estimated that consumers use a cell phone or tablet
approximately 80% of the time to surf the Web. The FTC warned that if you cannot make a required 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