Does Your Nonprofit Need Legal Counsel About Using Social Media? | Beth's Blog

Does Your Nonprofit Need Legal Counsel About Using Social Media?

Social Media Policy

Source: via Beth on Pinterest



Over the past couple of years as I’ve guided nonprofits in preparing their social media policies or when I speak,  I get asked questions that are more legal issues than about using social media.   Here’s a sampling:

  • Our organization does advocacy around some policy issues.  How do the rules on lobbying play into our social media strategy?    What if we’re asking people to take action on Facebook, does that constitute lobbying?  What do we need to be do to protect our 501-c3 status?
  • We run a social service agency that provides counselling to people.   What if people ask for referrals or help on our Facebook page?   How do we respond without creating any -potential liability for our organization?
  • One of my employees has asked me to write a recommendation on LinkedIn,  if they were fired – could our organization be sued?
  • What do we need to understand about copyrighted material and our content strategy?
  • Our organization runs a youth programs kids under 18,  what if the kids want to friend the teachers on Facebook? Can we post their photos on Facebook or our Web Site?   What are the legal issues?
  • When should our organization consult a lawyer when we have concerns about our organization’s social media usage?

First, let me clear.  I’m not a lawyer nor do I play on television.   When I get asked this question,  I point people to resources with this disclaimer:  “CYA – Consult Your Attorney!”

Now, I have another great resource to share,   Good Counsel:  Meeting the Legal Needs of Nonprofits by Lesley Rosenthal, the astute General Counsel of Lincoln Center for the Performing Arts.   It is an thorough guide for the most common legal, governance, and fundraising compliance issues facing nonprofits.     Her writing style is less lawyerly, and well, human.   The book is filled with stories, practical resources, and tools.      The book is written for staff and board members.      While the advice in the book does not replace an attorney,  having this on your reference desk can help you be more efficient your attorney’s time because you’ll come to meetings educated.

The chapter about communications meets legal covers trademark review, third-party rights clearance, consumer regulatory compliance , and general review of communications strategies.     The points related to online tactics include such items as a web site privacy policy, sweepstakes, other privacy considerations such as HIPPA, and social media sites.       Rosenthal educates about these laws and the implications for nonprofits in pretty clear langauage and points out that these laws apply to social media sites.  She also covers the role of counsel if the organization finds itself thrown into a crisis communications situation where there is unflattering media attention or a “twitter storm.”

There is an entire chapter devoted to the limits on nonprofit organizations’ political activities as we know that 501c3 organizations are strictly prohibited from intervening or participating in political campaigns.  However,  what is or what isn’t permissible isn’t always clear.   The chapter shares some examples what is permissible and what isn’t permissible political activities.   It also describes what lobbying is and summarizes what record keeping, registrations, and disclosures are needed.

Each chapter of the book ends with some focus questions and checklist for a work plan.   The questions for this chapter are useful to help you identify specific activities or examples from your organization that you are not sure about and to share them with your legal counsel.

  • What kinds of political activity must a 501c3 organization avoid altogether?
  • What might happen if a 501c3 organization endorses or opposes a political candidate?  Cite a case example.
  • What are some politically related activities are permitted to undertake?
  • What steps can a nonprofit staff take to ensure that their personal political activities are not ascribed to the organization?
  • What is lobbying?
  • How do lobbying rules differ from rules of political campaigns?
  • How much lobbying may a 501c3 do?
  • What disclosure are required?
  • What are our state’s registration requirements for nonprofits lobbying activities?

A check list to work through with your legal counsel:

1.)  Review policies and practices for compliance with the absolute ban on intervening in political campaigns
2.)  Review lobbying activities to ensure it complies with laws (Public policy issues and limited part of organization’s activity)
3.)  Check bylaws for provisions regarding lobbying activity
4.)  Determine compliance with record keeping and registration requirements
5.)  Determine compliance with federal, state, and local reporting requirements and Form 990 disclosures
6.)  Find out whether organization has any significant history of regulatory action
7.)  Find out whether the organization has made a 501 h election
8.) Assess whether planned or desired political activities suggest a change in corporate form, spinoff, or establishment of sub-section 501c4 entity.

While not every activity that bears on politics or government counts as lobbying, the chapter notes that there is a lot of uncertainty in this area and many shades of gray.   Also, the penalties can be severe for 501 (c) (3) organizations that cross the line.     The book emphasizes this point:   If your organization has questions or is unsure,  consult with qualified legal counsel!

The book covers much more than legal issues related to your organization’s communications strategy.  It covers:  contracts, intellectual property, fundraising, financial disclosure, human resources, operations, facilities management, and political activities.   All in all, a useful reference to help you prepare working with your organization’s counsel.

What resources has your organization used to become educated about legal matters, social media, and your nonprofit?

Additional Resources:

Influencing Public Policy in the Digital Age by the Alliance of Justice
Friends, Tweets, and Links:  IRS Treatment of Social Media Activities by 501c3 Organizations
Social Media Policy Resources (includes links to legal issues)

4 Responses

  1. Dan says:

    The Alliance for Justice is the real authority on lobbying rules for nonprofits. But it is a real headache at times, because while there are guidelines, the fact is that you have to decide on your own what constitutes lobbying and what doesn’t. Lobbying is a huge gray area (unlike getting involved in political campaigns, which you can’t do, ever)and I think the IRS is unlikely to ever make the guidelines even more explicit because that would just invite controversy. Several current presidential candidates would probably have had to register as lobbyists if those rules were tightened up and made explicit, which probably would have prevented them from running for president later on.
    Of course, the lobbying rules for nonprofit should simply go away, if you ask me. Nonprofits have every right to weigh in on public policy issues, and the absurd rules (direct vs. grassroots lobbying, etc) are just a way for Congress to muzzle the nonprofit sector.

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  3. Excellent resource Beth. The changing landscape the Internet continually creates means we must push our legal advisors to step up and become savvy. This should be a good resource for them as well.

  4. Beth says:

    Claire: Glad you found it useful!