Three Legal Risks In The Year Of The Hashtag

And if you want to read more about Hashtag gang signs…I mean hand signs, check out http://www.briansolis.com/2011/06/hashtag-this-the-culture-of-social-media-is/

2013 is the year of the hashtag.  Forget all of those silly predictions we made for this year in social media just a few short months ago, the number one trend for the next 9 months is the total domination of the hashmark.

Hashmarks (the actual symbol #) have been used on the internet for decades although it was never quite rescued from obscurity the way email brought the @ symbol back from the brink of death.  The most common use of hashmarks prior to social media was their use in IRC, an Internet chat technology, where hashmarks were used to label chat channels people could join.

But hashmarks became popular in the social media age thanks to Twitter users.  For a platform where everyone spoke to everyone else at the same time, users needed a way to differentiate between different topics and conversations.  The proposal to use hashmarks combined with a word or phrase to create a hashtag was first proposed by Chris Messina in August, 2007 but the concept really took hold a few months later when the hashtag #sandiegofire was used for updates on the massive fires that hit San Diego in October, 2007.  After that real fire, hastags caught virtual fire and spread across Twitter.

Fast forward to 2013 and not only has Twitter integrated the hashtag into their platform (many years ago they made all hashtags automatic search terms just by clicking on them) but other platforms have integrated the same function.  Google+ launched with it, Instagram uses hashtags, so does Pinterest and several others.  The biggest holdout is rumored to be caving as Facebook is reported to be adding hashtag functionality.

A fantastic analysis of social integration in this year’s Superbowl ads shows how hashtags have caught on amongst marketers as well.  Every kind of social integration in a television commercial (showing a link to a Facebook page, showing a link to a corporate website, or even use of niche technologies like Shazam’s audio tagging) were down except for the use of hashtags which were up a whopping 31%.  Why hashtags instead of more specific links?  Probably because hashtags are about conversation topics rather than platforms–if I’m a brand and I start using a specific hashtag I might see that topic pop up on Twitter, photos posted with the topic on Instagram, related links pinned to Pinterest with the hashtag, even longer posts about the topic placed on Google+.  Hashtags are platform-neutral, although some platforms make it easier than others to discover.

Commercial incorporation of the hashtag and social conversation has been a fascinating evolution to watch.  It started with traditional “Follow us @account” messages on commercials and TV shows.  Then it became “Tweet us and we’ll show it on the air!”  Then we saw several shows try to use their name as a hashtag to promote conversations while the show was on.  The latest move is to have several hashtags appear during the show or commercial, often around key moments.  The TV show Survivor will now display hashtags like #immunitychallenge rather than a more general #survivor topic.

However, with this evolution and broader hashtag use comes a few legal risks which brands should keep in mind.

Hashtag contests can go places you don’t want to go

Back when hashtags were largely a Twitter-only function, it was possible to run social media contests by asking people to post their entry using a hashtag.  Both the brand and the entrants largely understood that meant posting on Twitter only.  But now that hashtags are supported on so many platforms, brands must be careful about using more than just hashtags to denote the proper place for entries.  Google+, for example, has hashtag functionality but does not allow contests to take place on their platform.  So be clear about entry places beyond just hashtag.

Hashtags as consent probably still don’t work

I’ve seen some promotional efforts that ask users to post a comment or picture using some unique hashtag like #UareDbest2013WhatWhatHolla!  Then the picture or content or even user avatar associated with that post will be used by the brand on a web page, as a contest entry, or even as a printed ad.  Brands need to be especially careful about treating these hashtags as consent without some other kind of communication.  First, it’s unclear if the platform you are pulling the content from will allow that under their terms.  Second, while the hashtag may be so unique that it can only originate from someone who wants to participate in your event, it’s also possible one of their friends will see it and start using it or sharing it without knowing that was supposed to carry a consent to participate.

Now might be a good time to refresh your social media team about using hashtags wisely

It’s been a while since Kenneth Cole posted some stupid tweets about #Cairo.  Or since a small boutique posted some stupid tweets about #Aurora.   Or since Quantus airlines stupidly timed a promotion around #QuantusLuxury.  Or since Entemann’s stupidly tried to create a trend around #notguilty the day the Casey Anthony verdict was rendered.  Or since British furniture retailer Habitat stupidly tried to participate in every trending topic to sell some product.  The list goes on and on.  Now that hashtags are a hot topic, it may be time to get the right people in a room to go over the right way to use hastags so your brand doesn’t end up on this list.