Advertising Law Blog

Community is one of the most powerful ways to build brand loyalty, and an online discussion can be a great way to establish and nurture such a community. Online discussions were some of the earliest uses of the Internet, well predating the Web (which debuted in 1991; the Internet-wide Usenet discussion groups first launched in 1979), and today users can find a Web-based forum on almost any topic, from Spongebob Squarepants to salsa dancing. Discussions may take many forms, including message boards, chatrooms, wikis, or blogs.

While some of the discussions are independent, others are hosted by advertisers (like Sony's Everquest II online game forum), and still others may not be hosted by advertisers, but are frequented by advertiser representatives who answer questions and monitor customer feelings. Virtual communities can reduce customer service costs (by letting experienced users answer new ones' questions), provide invaluable consumer feedback about products and services, and even serve as unofficial focus groups for new ideas. Some advertisers even place their products within existing virtual worlds, as Toyota is doing with its Scion in Whyville.net.

Before launching or leaping into an online community, though, an advertiser needs to consider some of the legal and other issues it may face. First, remember that the Internet is worldwide; if an advertiser has a limited territory (due to franchise agreements, trademark licensing or other issues), it should be careful about how it uses the Internet as a marketing tool. Next, if the advertiser is going to host the discussion, it could face exposure based on what the participants say and do within the forum. In the United States, forum hosts are immune from claims for defamatory statements posted by third parties under the Communications Decency Act, 47 U.S.C. § 230, a law which has been extended to include collaborative publishers like Wikipedia. By contrast, in order for a forum host to be immune from copyright infringement claims for third-party postings on its site, it must register with the U.S. Copyright Office and respond promptly when notified of an alleged infringement. Of course, neither of these safe harbors protects an advertiser that itself posts defamatory or infringing material; they only cover postings by others.

What about other kinds of liability? Consider a situation where a user posts her own or someone else's personal information to a forum, and someone else uses the information to commit a crime (such as identity theft, or luring a minor for sex). What if someone posts child pornography to the discussion? What if the participants in the forum decide to criticize the advertiser's products rather than praise them? The best way to manage these kinds of risks is to establish ground rules for the discussion (often in a written policy), assign an employee to manage and monitor the discussion and direct it in appropriate ways and (if necessary) delete posts and ban participants who break the rules.

A few final thoughts. First, if an advertiser is going to launch its own online discussion, it should check its business insurance to make sure it is covered for the kinds of risks such a forum raises. (Look for more on insurance in a future blog article.) Next, remember that online discussions can live on well after they disappear from the original Web site, in online archives such as the Internet Wayback Machine and even cached Google searches. Also, if an employee is going to identify himself publicly as being from the advertiser, he should take care not to say anything that could embarrass the company or reveal non-public information. Finally, advertisers need to be sensitive to the dynamic of the online community once it is established. Often, regulars on discussion boards establish their own informal rules about proper behavior, and an advertiser that is overly aggressive about pushing its products, even within its own hosted forum, may find itself annoying its most ardent customers.