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Look Before You Leap: Making Informed Business Decisions as You Embrace Social Media

July 14, 2010 | 1 Comment

It’s not just about stone tablets anymore (even if those of you who know the authors of this article may think we put this article together using them). We no longer rely solely on print to convey our messages and information, and the once-exotic website is now oh-so-last century as many of you text, tweet, IM, jabber, blog and whatever, just about every waking moment.

And while some in the multi-family housing industry are still dragging their collective heels in participating in this modern technical world, many industry folks are embracing it with enthusiasm.  Often those folks are the marketing innovators with the vision of communication with rental prospects and residents alike through social media.

But keep in mind that while fire is used to keep us warm, it can also be used to destroy; knives are valuable implements, but can be used as weapons; and social media is a great tool but it can also be harmful if not used wisely.  And wisdom requires knowledge; with the knowledge of risks, your decisions will be informed.  So your authors want to provide you with some of that knowledge so that perhaps you can avoid possible pitfalls, with the emphasis on possible.  (Goodness knows that courts will have a fine time trying to apply long-held legal principles to the fast and ever-changing world of technology and communications.)  We are not telling you to avoid the use of social media in the marketing of your community and in the communication with your residents; we are only suggesting that you keep your eyes and your minds open.

Let’s start the discussion by talking about basic or “static” websites, where you control all the content. This website is a form of advertising and as a practical matter it is no different than any form of traditional advertising, so the same rules apply.  Your self-promotion must be true, or it is false advertising.  What you write about others must be true, or it is libel.  You have to be aware of consumer laws (watch out for sweepstakes or drawings that are really illegal lotteries)   and you have to honor the trademarks and copyrights of others.

Let’s not forget about the fair housing considerations:  The purpose of a website is to advertise the community and all content (that means both words and pictures) must be fair housing compliant.   Quite simply, that means that a “reasonable person” looking at your website should not see anything that would suggest “any preference, limitation or discrimination because of race, color, religion, sex, disability, familial status or national origin.”  This means that the words that are used, the directions that are given, the symbols that are used, and the pictures that are shown cannot indicate that type of preference, limitation or disability.  And the days of using Barbie® and only Barbie in your advertising should have long been over.  She is tall, blond, beautiful and white, but that is not the case for everyone.  White only advertising is a costly fair housing sin.  Finally, remember the EHO logo.  It should be used on all of your advertising, and that includes your websites.

Now let’s move on and talk about a website where others can post information.  Are you liable for what they post?  The answer is “it depends”.  It depends upon how much control you exert over those external postings.  You may have heard of the Craigslist.com case; they were found not to be liable for what others posted on their website (and we are talking about fair housing violations here).  That is because they didn’t review or control the postings, they simply allowed them to be placed; and if a bad thing was posted and Craigslist found out, they pulled it immediately.  Under the Community Decency Act of 1996, Craiglist is an ISP and thus immune from liability for what others post.   (But as a side note, the National Fair Housing Alliance wants to see the CDA be amended to say that even if there is no review or control, there should be liability if it is a fair housing issue.  Ouch!  While the NFHA has not said whether they will try to make such a change happen, this is scary.)

But there was a different result in the Roommates.com case. In that case the postings for the type of roommate wanted (or not wanted as might be the case!) came from the on-line form they provided.  So Roommates.com was in essence controlling the content posts (with their fair housing repercussions) and they did not have protection under the Community Decency Act.  So it’s all about control.  The more the message is controlled, the more likely the accountability.

And that brings us to the current enthusiasm for social media and its use as an advertising medium, whether it be Facebook, Twitter, YouTube or a blog.  Is social media a form of advertising?   Once again, the answer is “it depends”.  It depends on what a judge or jury might say about this.  If we held a gun to the heads of multi-family professionals who are using a fan page on Facebook or who are sending “Tweets” (Note: these authors do not necessarily advocate holding a gun in such a manner, nor are we planning to do so), you would ultimately have to admit that the ultimate goal is effective marketing of your community or company.  And that sure sounds like advertising to us.

This all raises lots of issues and questions, but doesn’t allow for many clear answers! Social media can be a cost-effective and enormously successful form of advertising, but you need to make informed business decisions. You need to know what questions you should be asking before you take the leap into social media.  Based on our experience, we suggest you start here:

  1. You don’t need an active voice in the world of social media for people to be talking about you (feeling paranoid yet?). When people post comments – good or bad – will you respond, and if so how? Will you apologize for a mistake you made? Will you try to correct what you believe is inaccurate?
  2. And just who will be in charge of all of this responding, apologizing and rebutting? Who will be your voice?
  3. This can all be time consuming. Will you be “known as a company that listens and participates” as described by Mark Juleen with J.C. Hart in the October 2009 Units magazine? Or will the time investment push you or your staff “over the edge”, which is the concern of Lori Snider, apartment consultant interviewed in that same Units article, “Look Who’s Talking”. How much time will be committed to monitoring and responding?
  4. Where will your voice be heard? On your own website or blog? Through posts on the websites and blogs of others?
  5. Since you must be concerned about fair housing issues, what will you do if someone says something inappropriate about their neighbors (that’s right – your residents will be posting too!) or your prospects?
  6. What about the “over-the-top compliment” – could that be sexual harassment?
  7. Who is doing your blogging or tweeting or Facebooking (is that a verb?) for you? Are you giving them something (maybe a discounted rent, favorable lease terms or even an actual payment) to do that? Are they saying nice things? Then that is an endorsement or a testimonial, and either way they must tell that they are getting consideration for saying those nice things. In fact, you need to direct the person that they cannot make unsubstantiated claims about your community and that they must disclose any material connection between the blog and you (such as that rental discount). You should also monitor those solicited blog posts to assure compliance, and your internal rules should either prohibit your employees from posting any reviews of your community or doing so without revealing their connection to you.
  8. Which brings us to the question, when is an employee “yours” – with all the attendant responsibility on your part for their actions – when s/he is “on the clock” or when s/he is on their “own time”? The number of people with personal blogs and/or Facebook, Twitter, You Tube, etc. accounts increases daily and it’s likely your employees are in the blogosphere even if your business isn’t, so how will you manage the constant stream of comments?
  9. And that brings you to training. Will you train your employees in the proper use of your social media? Will you give them paternal advice on the proper use of social media in their personal lives? Just as the purely innocent remark can get us into trouble (fair housing, anyone?), so can the well-intentioned post or comment bring about unexpected and unpleasant consequences.

This article has given you way more questions than answers.  The world of social media is a world that is quickly evolving.  Keep your eyes open, your ears to the ground, and know exactly to where you are leaping.  This will help you to better land on your feet, and perhaps not in a courtroom.

This article was written by Doug Chasick, Senior VP, Multifamly Professional Services with CallSource®, and Nadeen Green, Senior Counsel with For Rent Media SolutionsTM. The information contained in this article is not to be considered legal advice, and the authors and their respective companies strongly recommend that you consult with your own counsel as to any questions or problems you may have.

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