2015 GNYADA MEMBERSHIP DIRECTORY

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

HOT TOPICS 2015 GNYADA Membership Directory 47

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