One Hidden Legal Risk in Restaurant Marketing

You can’t underestimate the importance of high-quality images for a restaurant’s digital presence and their ability to drive traffic. Visuals have become a core part of the dining decision-making process as research from Barclaycard Payments shows diners spend an average of 40 minutes researching restaurants on social media before booking. 

Therefore, it’s just as important for operators to make sure all photos they use are sourced and licensed correctly because, while visuals drive traffic, they can also trigger liability exposure.

David DeLorenzo, owner and operator of Bar and Restaurant Insurance, is cautioning bar and restaurant owners of a new trend in lawsuits where attorneys are reaching out to restaurants with claims built around unauthorized photo usage. 

“Restaurants are usually targeted because they do so many social media postings and ongoing promotions to bring in business,” said DeLorenzo. “The issue is growing because of the technology used to scan many websites simultaneously creating a mass campaign to find images that someone else might own. Companies that are scanning the internet now are just looking for places to sue. They are issuing demand notices with short deadlines for settlement.”

Never assume that one single picture is no big deal.

Cases like this often center on the right of publicity, false endorsement, advertising and copyright infringement, he explained, adding that it can be very costly for owners to defend themselves, even if the potential damages are relatively modest — in the $5,000 to $10,000 range. 

“Most independent restaurants lack the manpower for professional marketing teams and legal teams to check and oversee everything,” said DeLorenzo. “The enforcement trolls are out in full swing and looking to profit from an operator’s lack of knowledge about this situation. It can be very scary to receive a letter from an attorney demanding money especially when you had no idea you did something wrong.”

DeLorenzo advises bars and restaurants to ensure proper consent when utilizing imagery for their websites, social media channels and other promotional platforms. He suggests hiring reputable marketing and social media professionals who take care of getting exactly the right kind of consent for public usage, rather than posting or displaying unauthorized photos of the general public.

“You must have properly licensed in-house graphics — that includes photos and images used on your social media platforms, website, online menu, etc., “ he said. “‘I found it on Google’ is not defensible. Never assume that one single picture is no big deal. Always own what you post, and don't let other companies or people post without permission, sign off or ownership of what they have produced for you.”

He also suggested: 

• Set internal rules about posting. 

• Train your GMs or marketing managers on best practices and why they are necessary. 

• Audit your website and social media for existing content and clean it up, when necessary.

Insurance policies now exclude this sort of claim because it is too hard to defend against and they can't control what restaurant operators are doing or not doing, said DeLorenzo. 

“So many new policies now have IP exclusions or have narrowed their form to exclude this sort of advertising claim. It now provides more specific coverage.”

Despite this, If you get a demand letter, he recommends contacting your insurance broker.

“Do not ignore it. Even if there is no coverage, at least let them respond about it. Preserve all evidence you have and contact a specialized attorney on the matter.”