Although the NCAA might not want hashtags painted on football fields, hashtags are becoming one of the most common tools by which marketers engage with consumers. As consumers continue to share more content and images of themselves as part of their social media conversations through applications such as Instagram, Twit Pic, and Vine, among others, marketers are using hashtags more often to pull this content into their marketing initiatives. For example, a marketer will provide a call to action, soliciting users to Tweet or send Instagram photos of themselves to a designated hashtag. When users Tweet to the hashtag, the marketer treats these responses as implied consent to use this content in its marketing.

But, is a marketer’s use of such content lawful? Can marketers rely on a theory of implied consent from a consumer (which we will call “#Consent”) as a form of legal consent?

While #Consent seems like a perfect fit for the real time engagement of consumers by marketers, and in certain cases, might be legally sufficient, that is not always the case. In many states, written releases are required to use a person’s name, image or likeness without violating his/her rights of publicity or privacy. Using hashtags in a real time marketing campaign, however, might not always allow a marketer to secure written consent. For example, there is no place on Instagram to include terms and conditions other than on a brand’s own Instagram page, and the consumer may not initially visit the brand page when engaging with a marketer through use of a hashtag.

Below are a few rules for PR firms and marketers to consider when using hashtags in their campaigns. While following some of these rules won’t eliminate the potential for a legal claim, it may help reduce the practical risks involved in running a hashtag campaign:  Get more than #Consent. If you direct consumers to your website or a Facebook or other web or mobile application, you will be able to have users click through to accept your terms and conditions and grant you permission before using their content or personal rights.

 Comment on a user’s post, requesting permission to use it and asking the user to consent in a subsequent comment or through separate direct messages.  When using #Consent, the more a consumer understands your marketing plans, the less likely the consumer will object to your use. In other words, disclose your intended use in the call to action and all collateral materials. The more specific this disclosure, e.g., “we will use your photo on our Facebook page”, the better. A more descriptive hashtag, [see https://www.facebook.com/hobanaheim/app_398004766932584], might also be helpful in alerting consumers to your intent.  Include a link to your terms and conditions where possible in all collateral messaging to users. For example, even if the messaging does not drive to the brand’s page, link the terms and conditions at the brand pages and any other social media page where you are promoting the campaign.  Use #Consent carefully. Do not use a consumer’s name, likeness, or any content in a manner that is not clear from the campaign messaging, such as in a separate television spot, without getting actual written consent to use the content. Otherwise, in addition to potential legal claims, the consumer might create an unflattering hashtag describing you and your brand.

Reprinted with permission from The Firm Voice, a blog by the Council of Public Relations Firms