Blake Lapthorn Social Media seminar 12 October 2011


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Blake Lapthorn social media seminar held in its London office on 12 October 2011.

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Blake Lapthorn Social Media seminar 12 October 2011

  1. 1. Employment law and social media 12 October 2011 A look at the legal and practical issues arising from the use of social and professional networking Oliver Weiss Senior solicitor
  2. 2. Context Types of social media – Facebook – LinkedIn – Twitter Social media usage – 600 million Facebook users worldwide – 100 million LinkedIn users worldwide of which approximately 5 million in UK – 200 million users of Twitter
  3. 3. Context Additional statistics – Facebook has more traffic per week in US than Google – One in five divorces blamed on Facebook – 25% of FTSE 100 companies hire through LinkedIn – Approximately one new joiner to LinkedIn every second; 1 million people joining every twelve days
  4. 4. Social media in the workplace Implications of using Facebook and LinkedIn at work Some employers have banned access to social media completely But access to social media valued by employers – internal communications – recruitment – marketing Social media becoming the “norm”
  5. 5. Misconduct through use of social media Bullying or criticising colleagues – comments posted on social media sites can amount to gross misconduct – important to consider carefully both the nature of what has been posted and all circumstances Inappropriate comments and/or bringing the employer into disrepute – this can amount to gross misconduct even if ostensibly disseminated to personal friends/contacts only
  6. 6. Misconduct through use of social media
  7. 7. Misconduct through use of social media Criticising employer – Stephens v Halfords: store manager who criticised redundancy process was held to have been unfairly dismissed Comments about customers – in Preece v Wetherspoons a bar employee was dismissed after making disparaging comments about customers on Facebook Revealing confidential information – revealing strategic decisions or details of internal matters which have yet to be announced
  8. 8. Social media as evidence of misconduct ****
  9. 9. Social media as evidence of misconduct Evidence of unauthorised absence – be cautious about jumping to conclusions on the basis of comments or pictures on Facebook as they do not always tell the whole story Exercise caution when using social media as a tool of investigation
  10. 10. Data Protection and Human Rights Data Protection – employer must comply with its obligations under the Data Protection Act – relevant to recruitment and candidate vetting – ensure that employees do not disclose personal data belonging to colleagues Human Rights – article 8: right to respect for private and family life – article 10: right to freedom of expression
  11. 11. Employer could be liable for comments made byemployees Discriminatory comments – eg racist and sexist comments made by one employee against another – employer has a defence if it can show that it has taken reasonable steps to prevent such discriminatory acts – policies and training key to avoiding liability Defamation
  12. 12. Social media after employment has ended Soliciting or dealing with clients – LinkedIn effectively amounts to a database of contacts – Who “owns” the LinkedIn database? This is problematic because often it consists of a combination of work and personal contacts – Particularly relevant in context of sales or recruitment based businesses where customer databases are very important
  13. 13. Social media after employment has ended Soliciting or dealing with clients contd. – Do restrictive covenants in contract prevent employee from having contact through LinkedIn? – Courts showing willingness to treat such communications in same way as communications on any other medium – Difficult to ascertain what degree of communication is required – “Solicitation” harder to establish than mere “dealing” but what is “dealing” in this context?
  14. 14. Social media after employment has ended Breach of confidentiality – Arguably clear from database who “customers” are. Are these contacts confidential? – Database Regulations and Intellectual Property rights References – be careful not to provide negligent references
  15. 15. Practical solutions - policies Employer must have clear written policies dealing with social media. Such a policy should: – set clear parameters of what is and what is not acceptable use for Facebook, LinkedIn etc – clearly state that infringement of the policy could result in disciplinary action – make it clear that employer will monitor usage to ensure compliance with the policy
  16. 16. Practical solutions - policies The policy should be tailored to specific needs of the business – May require personal use to be restricted to outside of normal working hours – May deal with how LinkedIn contacts will be treated after termination of employment The employer should consult with employees as to what should be contained in such a policy Policy should be kept as simple as possible and must be dynamic
  17. 17. Social Media Marketing 12 October 2011 Simon Stokes Partner
  18. 18. This presentation What is social media marketing? Legal risks Managing legal risk Q&A
  19. 19. What is social media marketing? Brands need to become friends with customers on Twitter and Facebook The social web offers companies the chance to befriend their potential customers. (Daily Telegraph 02/10/11)
  20. 20. What is social media marketing? The use of web 2.0 and social networking for marketing purposes – Twitter, Facebook, Flickr – Facebook – aims to be “web within the web” with embedded apps to access other sites/content – You Tube – blogs/UGC Use of technology for marketing purposes often with a social media element – i-phone applications – advergames
  21. 21. What is social media marketing? Example of campaigns Dulux “lets colour™” Project (2010-11) Heavy use of video content Blogs/UGC (eg users upload videos etc) Often advertising-agency led (initially)
  22. 22. Legal risks Smm is about “brands having conversations” - all conversations have risks – users blog disparaging/defamatory comments (held to be "published" by the firm?) – unwittingly infringe others rights by reusing social media content without permission – data protection, advertising laws and/or Financial Services Authority (FSA) rules on financial promotions may be broken – firms may lose control of their web presence through uncontrolled activities by users/tweeters
  23. 23. Managing legal risk (IPR, general) IPR (if generating new IPR – brands, trademarks, domain names – protect) – Register key brands – Ensure domain names in your name Contracts (agencies, sm sites) Policies (internal - HR) User terms (blogs, data collection) Advertising and consumer law
  24. 24. Managing legal risk (contracts) Contract – agency – Campaigns often advertising agency led initially – Get contract reviewed to ensure you protect: your brand and other IPR (especially domain names, ownership of video content etc) customer data (in line with DPA 1998) ability to take back in-house and transfer fan sites back to you
  25. 25. Managing legal risk (policies) HR Policies – HR policies need to be reviewed – Address use by staff of smm (not just dealing with misuse of employers time – what if employees seek to comment about the business? Or you tell them to?) – Clarify roles and responsibilities of those permitted to use smm for marketing purposes
  26. 26. Managing legal risk (user terms) User terms – Privacy policy - ownership and control of user data IPR Data protection – Blogs/UGC Rights to use Liability as publisher? To moderate/not to moderate Notice and take down Blog terms/acceptable use policy
  27. 27. Managing legal risk (legal compliance) Consumer law compliance – Consumer Protection from Unfair Trading Regulations 2008 – general duty not to trade unfairly (from 26 May 2008) Unfair if a misleading omission Unfair to use editorial content to promote a product where promotion paid for without making that clear OFT enforces Take care if you pay a blogger/have employees blog See OFT enforcement action against Handpicked Media (December 2010)
  28. 28. Managing legal risk (legal compliance) Advertising law compliance – Self-regulation: Latest UK Code of Non- Broadcast Advertising, Sales Promotions and Direct Marketing (12th edn) came into force on September 1, 2010. This Code (CAP Code) is enforced by the Advertising Standards Authority (“ASA”) – CAP Code – general and specific (eg gambling, medicines, tobacco etc) – legal, decent, honest and truthful – Sanctions: adverse publicity, denial/withdrawal of media space, OFT intervention
  29. 29. Managing legal risk (legal compliance) CAP Code extended from 1 March 2011 "Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities." editorial, public relations eg press releases and investor relations material remain outside the jurisdiction of the ASA.
  30. 30. Managing legal risk (legal compliance) New sanctions – Providing details of an advertiser and the non-compliant marketing communication on a special part of the ASA website. – Removal of paid-for search advertising –ads that link to the page hosting the non-compliant marketing communication may be removed with the agreement of the search engines. – ASA paid-for search advertisements - the ASA could place advertisements online highlighting an advertiser’s continued non- compliance.
  31. 31. Managing legal risk (legal compliance) Recent Social Media ASA Adjudication (ASA Adjudication on Cell Drinks 3 August 2011) – Promotion of alcoholic drink “Cell Drink” through video ads on YouTube and a linked Facebook page – Sensitive area – alcohol promotion – risk of promoting to under 18s – Was a breach of the Code for various reasons (eg irresponsible – associated alcohol consumption and daring feats) but also a specific SMM issue – “age gates” on YouTube and Facebook not sufficient here (under 18s might still be able to access them and ads would appeal to under 18s – advertiser couldn’t rely on an age gate here)
  32. 32. Conclusion – Dos and Donts Do – Protect IPR (trade marks, domain names) – Review contracts with agencies and smm sites – Ensure use of adequate privacy and blog policies – Institute internal sm HR policies (part of wider HR policies re social media generally) – Vet copy for legal compliance Dont – Encourage your employees to blog or promote products without careful controls
  33. 33. Q&A Questions?