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What is advertising and what is not?

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When it comes to social media, the jury is still out.

Being a social media manager for a big brand can be a risky job. Big companies of today admit to the importance of using social media to get people’s attention and appear more human in their advertising. However, for everything they post online, there are myriad legal issues to consider, according to a report published on Feb. 17 by Digiday.com. There is also no time to consult the legal department before each post.

Brands that are too conservative run the risk of coming off as commonplace at best and corny at worst, while brands that do not think before they tweet run the risk of being sued.

Take Arby’s gamble during the Grammy's music awards, for example. Arby’s marketing team tweeted at Pharrell Williams about the bizarre Smokey the Bear hat he wore at the event. The restaurant chain took the risk of being sued for insinuating some kind of endorsement and mentioning the artist without his permission.

However, the risk paid off. The tweet got plenty of exposure during the evening from the marketing world and consumers alike – the gamble paid off with 83,451 retweets and 49,045 favorites (and counting). More importantly, Williams did not take any legal action against Arby’s for using his name.

Supreme Court rulings aside, when it comes down to it, corporations just are not people. Social media was designed for human conversations and interactions. When businesses get involved distinguishing between what is advertising and what is not is a gray area and there is not a clear-cut answer for it, yet.

“One of the great challenges that brands face is that often the kinds of things that are acceptable for an individual to do online in their personal interactions isn’t really appropriate for a brand,” said Jeff Greenbaum, global president of the Global Advertising Lawyers Alliance and manager partner at Frankfurt Kurnit Klein & Selz.

“Just as advertisers wouldn’t take a photo and put it in an ad without getting permission from photographer, the same thing goes for social. But the issue is that social media is intended for sharing — it allows you to retweet and repost things — so there is this conflict between what the intellectual property rules permit and what social media actively encourages people to do,” concludes Greenbaum.

The same can go for those who buy Facebook likes. Seems to be cheating their way through the world of social media marketing to gain more exposure for their business.

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