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Social Media and The Law

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Is your social media activity breaking the law? In this session Dominic provides his Top Tips to safeguard your brand, taken from Tempero’s recent eBook ‘UGC & The Law’. You may be surprised at the …

Is your social media activity breaking the law? In this session Dominic provides his Top Tips to safeguard your brand, taken from Tempero’s recent eBook ‘UGC & The Law’. You may be surprised at the areas your brand is at risk.

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  • With online laws we mean key issues such as Contempt of court Libel Copyright Data Protection Child Protection With others such privacy, obscenity, competitions, abuse, hate crimes, terrorism obviously important too.
  • Our research showed that on avg. 70% of brands felt that damage to their brand reputation was a bigger risk than legal issues. We saw this as positive as it hopefully meant most brands are committed to social media marketing responsibly for the sake of brand protection rather than just to check a box with their legal department. We think this ability to weigh up Legal vs. Brand risk is a core skill in the social media landscape. Particularly when you encounter the key legal issues. So - lets look at the main risk areas we at Tempero see on daily basis
  • A website or an ISP is usually seen in law as a publisher. If the website is moderated, you may also be an editor If a defamation claim is made, the website, ISP, and writer can potentially all be sued An audience of one is enough to make a claim possible; greater numbers can increase the size of damages awarded As with copyright, the fact that 'someone else published it first' is not a defence. So copying, repeating or forwarding libelous remarks can make you guilty of libel in place.
  • If you manage the site as in: have a log-in, and the powers to review, edit, or remove content then you may be classed under the law as a site moderator. There is a moderation paradox: if you're irresponsible and don't take down content then you can use the ISP defense, meaning you didn't know about it so can't be held responsible. Not so, you have to be realistic based on the volume of content you are responsible for. If you manage a smaller site, and people can easily contact you to ask you to take down content, then you need to respond. To that point, website administrators MUST have contact details displayed on the site. This is a legal requirement alongside a number of other details which must be displayed on every single website. It’s amazing how many campaign sites are launched without these legal basics in place.
  • There are some similarities with libel in this area
  • A precedent has been set that ISPs are protected if unaware of content in contempt, this would likely extend to site owners and editors. You must have a way of acting upon reports that you have published content that falls under contempt of court. Make sure channels of communication from users are monitored. In 2001 ISP Demon Internet successfully argued they could not be held in contempt for protected information posted on its web pages in relation to the James Bulger case. Previously Demon had been the first ISP sued for libel for being too slow to remove defamatory comments posted in a chat room after being contacted by the complainant.
  • Copyright protection is automatic. No contract needed between the user and the site unless otherwise dictated by the terms and conditions Typical risk areas for UGC are hosting video that uses unlicensed music, and the use of branded or trademark characters as avatars Users will have copyright over original content they themselves create or upload to your site EU E-Commerce Directive may protect you against the posting of illegal content so long as you are not encouraging this practice and you respond quickly to any take down notices Quality, not the quantity is looked at in court, e.g. Tweets are not too short to infringe copyright
  • If wanting to use content submitted by users it’s best to have lawyers create your Terms of Use Ensure users accept the terms and know they have done so – having to tick a checkbox or some other action before they can load creative content If you plan to re-use or distribute user's own creative content, make sure they know the details of the license and agree to it first – for example, if running a photo competition. Act promptly to take down any potentially infringing material as soon as you hear about it Take care when using content under Creative Commons – it’s not a license to use everything for free
  • At the end of the day we’re committed to an industry which delivers best practice. We’re always available on the phone if you want some quick advice. Keeping on the right side of the law benefits us all to continue social media marketing evolving and innovating.
  • Transcript

    • 1. Is your social media marketing breaking the law? Dom Sparkes, MD Managing social media 24/7
    • 2.
      • 1,000,000 ’s messages moderated
      • 60 live clients
      • 50 platforms
      • 15 languages
      • 14 years worth of moderation in 2009 alone
      We spend our time managing social media…
      • 120+ social network profiles
      • 1,000 ’s conversations tracked
      • 100,000 ’s mentions monitored
      • 365 / 24 / 7
    • 3. Since 2003, brands have entrusted their reputation to Tempero…
    • 4. Is your Social Media Marketing breaking the law?
      • Our survey of 200 senior execs found 81% rated their knowledge of law regulating online activity non-existent
      • Case law is thin on the ground
      • Some simple measures can help protect your brand
      • You don’t have to spend a fortune
      • Full UGC & the law guide is available to download from
      • tempero.co.uk
      • Slides are available from me, dominic.sparkes@tempero.co.uk
      • Oh, and I’m not a lawyer so the explanations will be brief!
    • 5.  
    • 6. What is the greater risk?
    • 7. Libel What is it? “ Any statement which hurts an individual’s reputation.” 2008 Research by YouGov found three quarters of internet users who comment online realise they could be breaking libel laws. What’s the risk? You may be seen in law as a Publisher & Editor The website, ISP, and writer can potentially all be sued An audience of one is enough Someone else published it first is not a defence.
    • 8. Libel How to mitigate the risk Ironically, moderating can potentially increase the risk At the same time, Danvers Baillieu, Associate at Winston Strawn says… “ If you edit or run a group or community, even if you're not responsible for the hosting of content (such as a Flickr group), then choosing not to exercise control and ignoring requests to remove defamatory or illegal content would not be a defence to any claims brought against you.” Have a clear complaints policy and procedure Be prompt in removing any material that provokes a complaint Provide clear guidance and 'rules of play' to discourage defamation by users
    • 9. Contempt of court What is it? When a court’s authority is not upheld, such as disobeying a court order, that action is held as contempt of court. Importantly for UGC, Contempt of court applies equally to content published by professional writers and the general public. What’s the risk? We see messages that in are in contempt daily Users often don’t realise they are in contempt of court Some purposefully try to publish information about live cases
    • 10. Contempt of court How to mitigate the risk The good news… If you’re unaware of content in contempt of court you may be protected But - You must have a way of acting upon reports Make sure channels of communication from users are monitored. In 2001 ISP Demon Internet successfully argued they could not be held in contempt Previously Demon had been the first ISP sued for being too slow to remove defamatory comments
    • 11. Copyright What is it? Intellectual Property is the ‘creations of the mind’ - whether industrial property (trademarks, patents and industrial designs) or Copyright (artistic and literary works).” What’s the risk? Copyright protection is automatic. No contract needed Video, brands or trademark characters as avatars risk areas Users will have copyright over original content EU E-Commerce Directive may protect you Quality, not the quantity is looked at in court, e.g. Individual tweets are not too short to infringe copyright
    • 12. Copyright How to mitigate the risk Have lawyers create your Terms of Use Ensure users accept the terms Make sure users know the details of any license Act promptly to take down any potentially infringing material as soon as you hear about it Take care when using content under Creative Commons – it’s not a license to use everything for free
    • 13. Some recommendations… Carry out a risk assessment to evaluate the potential issues Create your own internal guidelines for what is and isn’t acceptable – keeping the (fuzzy) law in mind Create and publish clear, non legalese terms & conditions so your users know the rules Implement a robust notice and take-down procedure - robust means it must stand up to scrutiny and actually work! Encourage users to highlight inappropriate material Don’t over moderate – you’ll kill your community
    • 14. Thank you for your time The full UGC & The Law e-book can be found at: www.tempero.co.uk For further information please contact: dominic.sparkes@tempero.co.uk www.tempero.co.uk 020 7636 1200

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