Five hundred thousand smackers.
What we in the legal field refer to as multus of scabere [“A lot of scratch”].
Selena Gomez is rumored to charge roughly this amount to promote a sponsor in a single post across her social media accounts. Of course, Ms. Gomez has 124 million followers on Instagram, 50.4 million on Twitter, and 60 million on Facebook. Your numbers almost certainly pale in comparison. Nonetheless, social media can produce a lucrative audience if you can develop a substantial or focused following.
Is building a following on social media platforms without risk?
The primary danger is simple – losing your account. Building a following online takes time and effort, both of which carry an equivalent monetary value. If Instagram terminates your account with 200,000 followers one day, that audience you spent time and money building is gone. Immediately. And you usually have no chance of getting the account back.
So, how can you lose a social media account? Let’s take a look at a couple of possibilities.
A. Violating Terms and Conditions
I can hear you now – “ugg.” As a lawyer, my advice to clients is to closely read the terms and conditions before registering for any site. Doing so is critical to understanding what is, and is not, allowed when posting on the site. Now, do clients take this step? No. I’m a lawyer, and I don’t even read the terms of sites and apps.
Still, violating the terms of a site such as Instagram or Tumblr can result in the termination of your account. These terms often contain surprisingly harsh restrictions. Let’s take a look at a section of the Instagram terms that may or may not cause you pause.
“2. You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the Service.”
While the language appears clear, a closer look suggests it is anything but. Pornographic images? We can probably all agree on what the term pornographic means. Ah, but what about “sexually suggestive?” Do a search on Instagram for models, and you can view plenty of photos of women in what I would consider sexually suggestive poses – tiny bikini and pulling down their bottoms in a suggestive manner. I’m not a prude or objecting to such photos, but these images certainly seem to fall within the “sexually suggestive photos” prohibition. Instagram could terminate the accounts for these models at any time for this reason, particularly if there is some other aspect of the account Instagram is uncomfortable with.
And how about Facebook? The company includes the following language in its terms.
“5. Protecting Other People’s Rights
The Digital Millennium Copyright Act is a federal law enacted in 1998 primarily to address online copyright infringement issues. A full explanation of the law is beyond the scope of this article, but the general idea is a site or app cannot be held liable for copyright infringement based on content uploaded by users. For example, you post an image taken by a third party photographer on Instagram. While you might be sued for infringement, the DMCA would provide Instagram with immunity from the claim…so long as it follows a particular compliance process.
And here is where things get interesting.
Part of the DMCA compliance process requires sites and apps to maintain a file of “repeat infringers.” As the name suggests, repeat infringers are individuals who repeatedly receive copyright infringement complaints about the content they post. If one of these people receives more than two or three complaints in a year or two, then the site or app must terminate their account to maintain the DMCA protections.
Returning to our example, you have an Instagram account and post photos of yourself doing “your thang.” Every so often, you also post a picture of a celebrity. The photographer of these celebrity photos locates the images on your page and files a copyright complaint with Instagram. Instagram will remove the photos unless you can establish a fair use defense.
Ah, but what if you receive a complaint in August 2017, January 2018, and March 2018? Instagram will likely terminate your account because you are a repeat infringer.
And all your followers?
Can you get the account back?
All that hard work down the drain.
C. Financial Threats
A relatively new risk with particular social media platforms does not involve the potential termination of an account. Instead, the risk is financial, to wit, the platform in question makes changes to its policies that result in a significant drop in your earnings.
YouTube is the perfect example. Many vloggers have long made excellent incomes based on advertisements shown during their videos. In 2017, YouTube unilaterally issued a new policy that says users can only monetize videos once they have 10,000 views. The site also cut ad revenues issued to YouTube content providers as much as 60 percent in some cases. While these individuals did not have their accounts terminated, the income loss was nearly as painful.
Okay, now you’re concerned. Is there a solution to these potential risks? Yes and no. In a perfect world, you would read the terms and conditions of each social media site you use and comply with every single clause. Such an outcome is as realistic as you and I both driving 55 on the freeway.
So, what realistic solutions are there?
First, continue to do everything you can to build up a following on your social media accounts. Second, don’t publish any content on those accounts that you have not created or don’t have written permission to use, which should eliminate the copyright infringement claims. Third, always try to entice followers to head over to your site and sign up for the email list. Email lists may be considered old school marketing by some, but they are lucrative. Just as important, you will control that list. Your email list is not impacted if Instagram, Facebook, or YouTube close your accounts. You can still email the list to produce revenues.
Social media represents a tremendous opportunity to build a personal or company brand. Just make sure you are cognizant of the risks associated with these platforms. Always keep the issue of “control” in mind. Make a strong effort to move followers from platforms you do not control [social media accounts] to platforms you do [your email list].
To your success,
Richard A. Chapo, Esq.