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Your Best Practice Guide to Social Media and the Law


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A detailed guide about how the law impacts on a business's use of social media.

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Your Best Practice Guide to Social Media and the Law

  1. 1. YOUR BEST PRACTICE GUIDE TO SOCIAL MEDIA AND THE LAW Risky Business: social media consultancy The use of social media and the legal mine field that this has become, means that marketers must pay close attention to ensure every campaign stays on the right side of the law
  2. 2. CONTENTS INTRODUCTION: The law is closing in on social media practices 3 PART 1: Legal Eagles 5 PART 2: All rights reserved 8 PART 3: Retweet Recourse 13 PART 4: No purchase necessary 15 PART 5: Mixing staff and social 21 This icon denotes where you can click for more info
  3. 3. Copyright infringement, intellectual property theft, libel, defamation and data protection are all part of the business landscape. And that includes social media. But how much do you pay attention to the legal ramifications when engaging in social conversations? From blog posts to competitions, you need to check legal credentials: making sure your marketing efforts fully comply with the regulations and legislation. High profile cases such as Wikileaks grab the headlines, but what can seem like innocent tweets or blog posts can easily escalate into something far more serious for your business. A good example is the recent re-tweeting of allegations against Lord Alistair McAlpine, which could have theoretically resulted in 10,000 separate defamation cases. In the UK the burden of proof is always with the defendant – in this case the re-tweeter – who has to prove the truthfulness of their re-tweet. Social media platforms, such as Facebook, Twitter and YouTube, provide vital tools for business communications. As these networks expand they will inevitably come face-to-face with a range of statutory legislation that will attempt to impose a legal framework around them. And as businesses’ social profiles proliferate across social networks with, in many cases, staff posting content with impunity, the law and how this relates to social media networks must be taken seriously. What can seem like an innocent piece of fun at the time, can have consequences that were never considered before the send or post button was clicked. Coca Cola, for instance, doesn’t allow any of its staff to post a single piece of content on any of its social media networks until they have completed the company’s Social Media Certification Program. The recently published social media and the law benchmark report reveals that two-thirds of companies are not very aware of the ‘Terms of Use’ on social platforms. This leaves brands exposed when trying to defend social media actions. When it comes to wider litigation issues, respondents don’t feel very informed either. Sixty-eight per cent of marketers have basic, beginners or no personal knowledge of social media law. And only 6% are very aware of ASA’s CAP Code, which reflects requirements in law. immediate future has identified a core requirement for marketers to have an appreciation of how the law now impacts on their social media activity. The threats are clear: but your business isn’t powerless to act. For businesses this means implementing the right policies, guidelines, contracts and working practices now. In this paper you will find best practice guidance that all marketers can use as a roadmap to help ask the right questions and proactively involve legal teams – ensuring social media marketing is based on informed advice. THE LAW IS CLOSING IN ON SOCIAL MEDIA PRACTICES INTRODUCTION have basic, beginner or no personal knowledge of social media law 68% over This material is not intended and should not be treated as legal advice. immediate future ltd accepts no responsibility or liability to those that rely directly or indirectly on the information provided in this document. 3
  4. 4. 4.27 3.98 3.67 3.27 3.59 3.12 3.52 2.80 SERIOUS LEGAL RISK Taken from the Social media litigation: How prepared is your business? report WHAT DO YOU CONSIDER TO BE THE BIGGEST SOCIAL MEDIA LEGAL RISKS? Using data gathered from social networks MINIMAL LEGAL RISK Disclosure of confidential information Copyright infringement and misuse of trademarks Ownership of company / brand social media profiles and contacts Changes in social media platform terms (Facebook, Twitter, Pinterest) Negative comments or complaints about the company Monitoring social media Using user generated content Competitions, endorsements and promotions in social networks Respondents: 183 4
  5. 5. Having a thorough understanding and appreciation of the legal aspect of social media is a must for all marketers. With this knowledge in hand, campaigns can be designed and deployed safe in the knowledge that they are operating within the law. Each campaign that includes a social media component will be unique, but there are a number of generalisations that can be made when considering the legal aspects. Generally speaking, you should ask yourself these key questions: • Does the campaign meet all of the regulations laid down by the Advertising Standards Authority (ASA)? • Does the Law of Confidence apply to any of the materials being used – especially if these are user-generated? • Are all trademarks and other intellectual property rights fully credited? • Has all the content being used on social media networks been fully vetted for any potential claims of defamation? • Does the campaign fully comply with the provisions of the Consumer Protection from Unfair Trading Regulations? • Has the campaign’s content been assessed in the context of the Data Protection Act? • Have the rights to privacy (that is part of the Human Rights Act 1998) been fully assessed as part of the social media elements of the campaign? Important existing pieces of legislation that are being applied to social media campaigns include data protection, privacy and defamation. Established case and statutory law in the areas of intellectual property protection and privacy in particular are important for marketers. Especially if you are to fully appreciate how these apply to the social media networks used for business. In the absence of regulations specifically developed for social media networks, businesses must assume that existing legislation applies to all social activities. LEGAL EAGLES PART 1 THE LAW OF CONFIDENCE English law does not protect privacy with any specific legislation. However, there is a common law of ‘right to confidence’ that states that with any unauthorised use of published material there is a right to privacy of the materials owners. The law of confidence has been generally applied to intellectual property where a ‘confidant’ has stated they will maintain the confidentiality of the ‘confider’ with regard to any materials they have created. The test case Douglas and Others v Hello! Ltd (2001) is a good example where Michael Douglas and Catherine Zeta-Jones granted OK! magazine exclusive rights to publish photographs of their wedding. Hello! obtained secret photos of the wedding, which the Douglas’ had not given their permission to publish. Mr Justice Lindsay found in favour of the claimants in this case awarding the Douglas’ £7,000 in special damages for costs associated with rearranging the publication of the official photographs. By far the largest award however, went to OK! that was awarded damages of just over £1 million. Marketers must pay very close attention to the ‘right of confidence’ as failure to do so could be a costly mistake. When the law of confidence is applied to social media, user-generated content would fall under its remit. Marketers that intend to include user-generated content in their campaigns must ensure permission is obtained. Marketers should pay specific attention when using real names and other personal information of user-generated content. Otherwise the owner of these materials could claim that their privacy and the ‘contract of confidence’ has been broken. Moreover, if a personal loss can be proven as a consequence of the alleged breach of confidence, the awards of damages can be high. Banning the use of social media in your business will mean that users never learn to appreciate their legal responsibilities when using these sites. A training and educational program is much more effective. TIP 5
  6. 6. As your customers are placing increasing quantities of their personal information online, ensuring this information is fully protected is vital for all marketers to avoid costly legal battles under the Data Protection Act 1998 and the forthcoming Data Protection Regulations that are due to come into force in 2014. The basic principles of the Data Protection Act impacts on social media networks as businesses will often collect, store and otherwise manipulate information (using materials in ad campaigns for instance) and are therefore bound by the Act to protect the personal data that they are using. The Act has seven principles that marketers should always bear in mind when developing marketing materials. Data must be: • Processed legally and fairly • Processed only for a limited purpose • Relevant and sufficient for the purpose the data is being used for • Collected, stored and used accurately • Kept only for as long as is necessary • Processed in accordance with the rights of the individual • Only transferred to other countries that have comparable data protection controls. The Data Protection Act should be the focus for marketers at the moment, but the EU is also about to adopt the new Data Protection Regulations that will apply to all EU Member States. "17 years ago, less than 1% of Europeans used the Internet. Today, vast amounts of personal data are transferred and exchanged, across continents and around the globe in fractions of seconds," said EU Justice Commissioner Viviane Reding, the Commission’s Vice-President. "The protection of personal data is a fundamental right for all Europeans, but citizens do not always feel in full control of their personal data. My proposals will help build trust in online services because people will be better informed about their rights and in more control of their information. The reform will accomplish this while making life easier and less costly for businesses. A strong, clear and uniform legal framework at EU level will help to unleash the potential of the Digital Single Market and foster economic growth, innovation and job creation." Source: Europa A good set of brand guidelines should insist that intellectual property ownership is acknowledged via attributions and notices (for example, a copyright notice on written marketing materials or registered trademark symbol alongside a brand name). The same policies should be followed online and in the context of social media. It is important also to consider the instantaneous nature of social media and the possibility of brand misuse “going viral”. Technical protections (for example, disabling copy functions on a website) can be a more effective way to mitigate the risk of IP abuse than pursuing legal redress after an infringement.” DINO WILKINSON Partner, Norton Rose (Middle East) LLP “ Marketers should closely liaise with their company’s ‘data controller’ to ensure all aspects of the Data Protection Act are met by their social media campaign. TIP Don’t keep personal data culled from social media networks for longer than you need to, as this is a basic principle of the Data Protection Act 1998. TIP 3 out of 5 companies are not confident that sensitive or confidential information is protected on social media platforms 6
  7. 7. The new regulations are designed to strengthen the existing Data Protection Directive from 1995, and enshrine the new regulations in law. The aim is to harmonise the data protection legislation – with a key focus on privacy – across all EU Member States by 2014. When the new legislation comes into force, the EU will have just one enforcement authority that both businesses and consumers can use as point of contact for data protection and information privacy. For marketers the new EU regulations will have a major impact on how they develop social media initiatives. Ensuring full compliance with the existing Data Protection Act in the UK will, in the future, be joined by the new EU regulations. It is likely to mean businesses will have more responsibility for the data they collect and use. It is important to view your business’ Twitter and Facebook accounts, YouTube or Pinterest channels and the blogs and forums that your business uses as extensions of your company. As such, all due care and attention should be used when developing any materials for these channels. No one is claiming that the law as it stands at the moment was designed for social media networks, but legal practitioners are warning their clients to be on their guard. Marketers planning new campaigns for their business must deploy these initiatives having performed due diligence on their content from a legal perspective. The mantra for all marketers should be to ask: ‘How could the social media component of my marketing initiative damage my company?’ TIP 7
  8. 8. ALL RIGHTS RESERVED? PART 2 Copyright gives the author or creator of an original literary or artistic works certain exclusive rights to use and exploit that work. Trademarks are signs or symbols that distinguish products in the marketplace, such as brand names and logos. Modern technology has made it possible to reproduce material very easily; social media is a tool that allows for material to be disseminated to a vast audience with the click of a button. While social media provides an increasingly valuable channel for individuals and organisations to promote their products, it can also facilitate the unauthorised and unwanted distribution of protected works. Intellectual property laws apply equally to online or offline infringements, but activities on the Internet can be harder for rights holders to monitor, investigate and prosecute.” DINO WILKINSON, Partner, Norton Rose (Middle East) LLP “ Copyright is a core component of intellectual property (IP) law. It has been under the spotlight since the inception of the Internet. Copying of images and other materials was rife in the early days of the Web. But these days businesses pay much closer attention to the copyright protection of their own work, and how their organisations’ use other materials on their websites, ad materials and, of course, across their social media profiles. In essence the Copyright, Designs and Patents Act 1988 is the core piece of legislation that must be adhered to. Copyright though, has regional focus. There are no universal and international laws of copyright, as each country has their own. As many of the social networks your business is using are based in the US, it is important to pay attention to UK and US copyright regulations to avoid any possible infringement litigation. It is also important to understand the relationship that social media sites have with the content that they distribute. A social media network like Facebook acts as a connector and does not own or enforce any copyright of the content owners. Marketers should be aware that they are not able to sue the social media network for any alleged infringement of copyright, as it is your business’ responsibility to police this. percentage of survey respondents from UK companies that are very aware of consumer protection rights in social media 4.2 8
  9. 9. ‘For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.’ Facebook 2013 All rights reserved ‘You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).’ Twitter 2013 All rights reserved ‘You grant Pinterest and its users a non- exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products. Nothing in these Terms shall restrict other legal rights Pinterest may have to User Content, for example under other licenses. We reserve the right to remove or modify User Content for any reason; including User Content that we believe violates these Terms or our policies.’ Pinterest 2013 All rights reserved TERMS OF SERVICE: 9
  10. 10. Marketers should also be acutely aware of how they must protect the interests and confidentiality of customers when using copyrightable materials. Many marketing campaigns now have user-generated content. Indeed, the latest campaign for the Ford Fiesta only uses materials created by its brand advocates. And don’t forget that the materials that are used should be preserved, to protect your business in the event of a copyright infringement claim. Use a simple product that can backup all your social media channels at least weekly, if not daily, and ensure that you can use that backup by having inbuilt calendar views, search, etc. and export features. Also ensure that the tool is compliant with the social media network terms of service - this means that the data should be backed up locally to you and not on the servers of the backup service, as the social media networks all prohibit data being stored on other servers (but allow you access to your data and interactions). If you can combine both your backup / archive requirements with a tool that helps monitor engagement all the better - SocialSafe is one such tool.” JULIAN RANGER Chairman, Social Safe “ 10
  11. 11. Copyright in particular has attempted to keep up with the changes in technology, but with the advent of the Internet and the ease with which content could be copied, copyright legislation and the protection it afforded was clearly lacking. Out of the copyright protection vacuum grew Creative Commons. This non-profit organisation was founded to offer an alternative set of copyright licences that originators could use in order to control how their work is distributed. Creators can decide how much of their intellectual property they reserve and which they waive. This flexibility is a quantum shift in how copyright has been viewed in the past, which had an inflexible ‘all rights reserved’ licence attached to all copyrightable works. The Creative Commons website contains masses of information including a handy checklist of what to consider before using Creative Commons licences. This information is of interest to marketers, as it enables them to understand how Creative Commons protected works differ from traditional copyrighted works. And marketers can read how Creative Commons licences work to appreciate the rights that could be attached to materials they want to use in their campaigns. “Creative Commons is the licensing scheme for copyright works that was developed by the Creative Commons not-for-profit organisation. Its purpose is to enable public use and sharing of copyright works on the basis of standard licensing terms. These are often less restrictive than traditional copyright licenses. In this sense, it creates a new means of using and sharing copyright works but must be carefully considered by marketers: it should not necessarily be seen as a free and unlimited right to use.” DINO WILKINSON, Partner, Norton Rose (Middle East) LLP THINK BEFORE YOU CLICK The Internet is awash with images that can be copied with just a right-click of your mouse. Image copyright infringement and theft was rife in the early days of the Internet. Today as owners have realised the commercial value of their images, they are becoming more litigious when it comes to alleged infringements of their images. For marketers that need to use images in their campaigns it is vital that they follow some simple rules: • Was the image(s) being used taken by someone within your company for business use, for instance? If so, your company would generally own the copyright of those images and can use them without fear of copyright infringement. • If you are using images from a photo agency, or from a freelancer, it is vital that you have a licence that permits you to use the images in way you want to. Many of the photo agencies have strict rules about how their images can and can’t be used. • Generally the application of the ‘fair usage’ argument won’t stand up in court, as usually this applies to non-commercial works. So if you want to use an image for a marketing campaign, and were sued for copyright infringement, it’s unlikely the court would agree you had ‘fair usage’ rights. • Using freelance or contract suppliers to take images you need for a campaign should be approached with care. Under current UK law, the freelance photographer initially retains copyright of the images. Your business would need to state in the contract with the photographer if they are assigning copyright ownership to your company on payment for the pictures. • The content of the images you are using could also have a copyright issue. A good example is if the image has another business’ logo or trademark clearly visible. Here intent is what the law would look at if the business concerned claimed your company had infringed its copyright. The rule is check before you use. Pictures with celebrities will also have a privacy aspect that should be taken seriously. • Increasingly the strict ‘all rights reserved’ aspect of copyright is becoming more flexible. Often, images will have a Creative Commons licence attached to them. Marketers should not view this as their right to copy any images. Always check the actual licence terms before using any pictures with a Creative Commons licence attached to them. • User-generated images that may appear on your business’ blog or social media networks can be used, but your company’s terms and conditions should clearly state the terms under which images can be reused. This protects your business from claims of copyright infringement. However, pay close attention to the law of confidence. It could come into play of companies are not aware of the intellectual property rights of user generated content 46% 11
  12. 12. More user-generated content is finding its way into ad campaigns. Ford in its campaign for the new Fiesta will build their ad campaigns for the next year using only user-generated content. However, it is important to fully understand the ownership of this information. The content on social media profiles is also coming under scrutiny with the laws of copyright being applied. The laws of copyright are clear: Once the expression of an idea is in a tangible form (images, text, audio and video) copyright regulations apply, which extend to the life of the creator plus 70 years. Marketers should familiarise themselves with the terms and conditions of all the major social media networks, as they include details of what elements of a profile belong to the user, and what they are allowing the social network to do with this data. Social media profiles that your business sets up need to be considered with care. Especially when thinking about who owns the profile, you, your employee or a freelance support. The case of Phonedog v. Kravitz is a good example. Here Phonedog hired Noah Kravitz to help with their Twitter account. He set-up an account in the name of @Phonedog_Noah which went on to attract 17,000 followers. When Kravitz left the company Phonedog wanted the Twitter account reverting back to them. However, Kravitz simply changed the account name to @NoahKravitz and continued to use the account. The case was finally settled late in 2012, with Kravitz maintaining control of the Twitter account. In addition, employees that are now active across the social networks their employers support will build in some cases highly detailed profiles with information and contact lists that could have a high commercial value. It is important that businesses build into their contracts of employment unambiguous details regarding the ownership of these profiles and the data they contain. Clearly there must be a balance between businesses wanting their employees to become active social media users, as this can have commercial value; but businesses must also protect themselves and ensure that ownership of the data created resides with the business. The case of Mark Lons is a good example. He was ordered by the High Court to return the list of contacts he had built up on the LinkedIn social network whilst working for Hays, which he used to set-up his own consultancy business. Hays claimed that Lons had broken the terms of his employment contract. Lons attempted to counter claim that the information on his LinkedIn account was in the public domain. However, Justice Richards disagreed ordering Lons to hand over all materials linked to the contacts on his LinkedIn account. WHO OWNS THE CONTENT ON SOCIAL MEDIA PROFILES? His statement should be a touchstone for all marketers: “If anything good has come of this, I hope it’s that other employers and employees can recognize the importance of social media … good contracts and specific work agreements are important, and the responsibility for constructing them lies with both parties.” TIP YOUR LEGISLATION CHECKLIST COPYRIGHT, DESIGNS AND PATENTS ACT 1988 • Have assets such as images, videos and audio files been cleared for use by their respective copyright holders? • Have all trademarks been acknowledged on all marketing collateral? • Have all employees been briefed about what materials they can and can’t use on their social media postings? • Has all social media marketing collateral been fully protected with contracts that stipulate how these materials can and can’t be used? • Has a clear path of escalation been established if alleged copyright infringement is made against your company? Check the contract your business has with freelancers and contractors to ensure it is clear who own the copyright of the work produced and that you are able to use images online. TIP of social media professionals are not very aware of social platform ‘terms of use’ 66% 12
  13. 13. The ease with which a tweet can be written and posted can be a major headache for businesses that are trying to control how this platform is being used by their staff and marketers. Consider the recent case of former New Zealand cricket captain Chris Cairns. He won a defamation case against Lalit Modi. The award totalled £90,000 - that works out to £3,750 per word that was tweeted! Tweets have a number of pieces of legislation that could impact on any given message. Defamation is the key law that needs to be paid attention to. The recent re-tweeting of alleged paedophile names by thousands of people – including celebrities – has shown that re-tweeting information without legal checks can lead to litigation. Before a tweet is sent, you need to consider whether the tweet reduces a person’s standing in society in ‘the estimation of right-thinking members of society’. If it does, there could be a case for libel. Menacing and malicious tweets also fall under the law. Here, the law states harassment has taken place: ‘if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment’. Also, a tweet that is proven to be grossly offensive could fall under the Communications Act 2003 that states that satirical comments are allowed, but tweets that are obscene could fall under the Act. But the law can be grey sometime, as exampled in the case of Paul Chambers that demonstrates the issue. In a fit of frustration he tweeted: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!” The court immediately applied existing laws. But on appeal there was a rethink on how legislation like the Communications Act actually applies to social media. The High Court Ruling – that was subsequently overturned - said: “The potential recipients of the message were the public as a whole, consisting of all sections of society. It is immaterial that [Chambers] may have intended only that his message should be read by a limited class of people, that is, his followers, who, knowing him, would be neither fearful nor apprehensive when they read it.” “In our judgment, whether one reads the ‘tweet’ at a time when it was read as ‘content’ rather than ‘message’, at the time when it was posted it was indeed ‘a message’ sent by an electronic communications service for the purposes of [the Communications Act],” it said. “Accordingly ‘Twitter’ falls within its ambit.” Marketers in particular should pay close attention to the content of tweets when they describe a product or a service. Here the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008 comes into play. False statements about a product’s features for instance could result in a claim by a customer that they bought the goods based on the information contained within a tweet that then proved to be false. Ensuring your company provides identifying credentials is also important when using Twitter. Every marketer knows that false Twitter accounts are set up every RETWEET RECOURSE PART 3 The Defamation Act 1996 does provide that: “In defamation proceedings a person has a defence if he shows that: (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement. Here ignorance of the alleged defamatory statement could be successful as this is a provision of the Act. Marketers should though, not rely on this and check the accuracy of all statements. Source: SeqLegall TIP 13
  14. 14. day – usually linked to celebrities. From a business perspective, the company that marketing collateral is coming from must not be in dispute, or The Fraud Act 2006 could be used to claim that a criminal use of identity has taken place. The temptation to copy the content of tweets and pass this off as an original post should be avoided. This kind of activity could fall foul of the Copyright, Designs and Patents Act 1988. Isolated sentences may be used, as this could constitute ‘fair use’ which is allowed under the Act. However, new directives from the European Court of Justice may mean that more attention will have to be paid to how the alleged copied materials were then used in a new tweet. And the use of the hashtag in association with a trademark should be carefully considered. Here using the hashtag with another company’s trademarked name could result in a claim of infringement depending on how the hashtag was used within the tweet. Here The Trade Marks Act 1994 would come into play. The use of images that originally appear on social media sites such as Twitter should also be approached with caution. The images of the helicopter crash in Vauxhall that were quickly picked up by all the major news agencies illustrates the speed with which images like this can be reused without the proper checks on copyright ownership. In this case Twitter was the only organisation to have the rights to use their images as stated in their terms and conditions. For everyone else, proper copyright clearance should have been obtained. In addition, Twitter has recently moved to become more proactive when alleged copyright infringements are reported to them. Their view now is that they will provide details of the complaint and also information about how a counter-claim can be made. This is an interesting shift in the stance of social networks that have until now taken the view that they are simply a hosting platform for their users content. Whether the other major social media networks will follow suit and become more involved with copyright complaints remains to be seen. CHECKLIST 1. Why is a tweet being sent? It is important to ensure that content is always in support of well-defined campaign guidelines. 2. Do all members of staff have full knowledge of your company’s policy regarding content sent via Twitter? 3. Are all tweets vetted for copyright materials, or content that could be defined as offensive? 4. Think before using a hashtag that is used by a competitor or other business or product as trademark infringement could result. 5. Re-tweeting content should be considered and materials checked for their legality. 6. Does your company’s security policy include Twitter and how this should be used? LEGISLATION Defamation Act 1996 Protection from Harassment Act 1997 Consumer Protection from Unfair Trading Regulations 2008 The Business Protection from Misleading Marketing Regulations 2008 The Fraud Act 2006 Copyright, Designs and Patents Act 1988 The Trade Marks Act 1994 14
  15. 15. The use of competitions and other forms of competitive promotions have been a mainstay of marketers for decades. Social media has added a whole new layer of interactivity in this area of marketing that offers a chance to make personal connections with a customer base. Also, as social media now impacts on the use of sweepstakes and lotteries, it’s vitally important that marketers are fully aware of the laws and regulations that impact on these types of promotions. The core piece of legislation that has recently been updated by the ASA is the CAP Code. Section 8 of the Code should be paid particular attention to, as this ensures that the full identity of the promoter is clearly given. However, marketers must also apply the CAP Code in association with the guidelines (terms and conditions) of each of the social media networks the promotion will appear on. A good example here is Facebook, which clearly defines the additional information that must be included in a promoter’s terms and conditions, as they apply to their competition etc. Competitions that run over Twitter should similarly have their terms and conditions checked. Clearly with the 140 character limit that Twitter places on tweets, full T&Cs can’t be listed, but the tweet should link to these on your website. Also, take care with the re-tweeting of competitions, as these may not contain the link to your T&Cs, which is a legal requirement of the CAP Code. Social media is of course a global phenomenon. Which regions of the world your competition or promotion runs across is a major factor when the law is concerned. Competitions on Facebook for instance can be made country specific. Marketers should ensure they fully understand the laws and regulations in these specific territories before their promotions go live. Entrants will inevitably apply their local laws if they feel they have a case to bring to their courts. And think carefully about any materials that your competition has generated. Text, photos and video are now routinely used by businesses to further promote their brands. It is critical that your T&Cs clearly state that anyone entering your promotion gives their permission to use this material. NO PURCHASE NECESSARY PART 4 It is vitally important that marketers are fully aware of the laws and regulations that impact on promotions. £0.00 are aware of competition, sweepstake and gaming laws consider competitions, endorsements and promotions to be a social media legal risk HALF 26% yet only OF RESPONDENTS To make the legal position easier to define when using Facebook for competitions and promotions, make the promotion region or country specific. You can then focus on the legislation of that region to make sure your campaign fully conforms TIP Track all re-tweets of competitions as these can often be made without the important link to your terms and conditions. TIP 15
  16. 16. The CAP Code says: User-generated content (UGC) is content created by private individuals. In establishing whether UGC should be regarded as a marketing communication, and consequently fall within the remit of advertising self- regulation, the primary and preliminary areas of enquiry to be considered are: • Did the website owner originally solicit the submission of UGC from private individuals, then adopt and incorporate it within their own marketing communications? • Did a private individual provide the website owner, on an unsolicited basis, with material which the website owner subsequently adopted and incorporated within their own marketing communications? If the answer to either question is yes, (and of course that the content of the material and the form in which it is re-used by the marketer does itself constitute an advertisement or marketing communication by the marketer) then prima facie the UGC under consideration will be regarded as a marketing communication.” © CAP 2012 The potential issue faced by brands is how they manage social media and user generated content. The new guidelines imply that everything shown on a brand’s website, including consumer reviews fall under the remit of the ASA. “This means that all content including user generated content and reviews must be ‘legal, decent, honest and true’. Therefore brands must ensure that they have a process in place to make certain that when it comes to reviews and social media content they are actively preventing fake reviews or comments, not censoring or cherry picking what they display and ensuring that all reviews or comments shown are by verified product owners. “This will require a new focus on moderation for social commerce and ensuring that social media content is verified and not fake. There are still e-commerce sites with a manual, ’DIY’ approach to reviews, and there are also platforms that are non- compliant, which could catch some retailers out.” RICHARD ANSON Founder, Reevoo Source: Econsultancy “ are very aware of the Cap Code and ASA regulations on advertising and promotion 6%only 16
  17. 17. The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) – enforced by the Office of Fair Trading (OFT) - specifically prohibit “using editorial content in the media to promote a product where a trader has paid for the promotion without making it clear in the content or by images or sounds clearly identifiable by the consumer.” However, in a fast changing environment such as social media, it is important to provide brand owners and marketing practitioners with practical and easy-to-implement ways to help comply with the law. Also the FTC (Federal Trade Commission) in the US revised its Endorsement Guidelines in June 2010. However, it did not prescribe a particular disclosure notice on Twitter (or any other social media platform) but suggested that hashtags could be a good way to be transparent in a 140-character medium. The IAB and ISBA agree and suggest that ‘#ad’ be the one that brand owners and marketing practitioners encourage so that there is consistency and recognition for consumers. Marketers need to be careful that the campaigns that they run are clearly marked as advertising and promotional materials. The FTC advice to prefix content on Twitter for instance with the ‘#ad’ tag is one way that marketers can differentiate the content on their business’ social media networks as advertising. The question then becomes whether marketing via social media networks falls under the CAP Code. If the marketer re- tweets a message as advertising to promote their brand – positive sentiment, or a great review for instance – the CAP Code would apply, as the business that re-tweeted has control of the message. Also, if there is any commercial agreement in place with a celebrity or sportsperson your business is using for promotional purposes, the CAP Code would apply even if your business has supplied that person or persons with the content they are tweeting or using on their social media networks. Source: The IAB UK PAYMENT FOR EDITORIAL CONTENT TO PROMOTE BRANDS LEGISLATION AFFECTING ADVERTISING & PROMOTIONS FROM CAP MORE INFO When using social media networks like Twitter for promotions, clearly indicate that the tweets are for promotional purposes. TIP #ad 17
  18. 18. PINTEREST PROMOTIONS & MARKETING It is important that when marketers are developing campaigns for social media networks that there is no doubt who is sponsoring the campaigns. It is critical that the social network itself is not seen to be the sponsor of a marketing message that isn’t their own, as this would invariably break their terms and conditions. In addition, Pinterest has recently issued guidelines for the use of their site with contests and sweepstakes. Pinterest already has comprehensive ad marketing guidelines with the relevant section on contests and sweepstakes that all marketers should ensure they are familiar with to avoid any legal issues with their campaigns. FAVOURITE SHOP Show us your board on & FAVOURITE SHOP Show us your board CASE FILE TGI Friday is a good case study for how a successful competition that used social media needs to be correctly managed to avoid damaging the brand. Using their fictitious fan Woody the company wanted to rapidly build its Facebook fan base. It set a target of 500,000 fans with each of the first 500,000 entitled to a free Jack Daniels burger. The company was at 80,000 fans within just a few days. Faced with what could have been masses of negative feedback from fans who were unlucky enough to be in the first 500,000 fans to receive their free burgers, the company extended their offer to 1 million fans overnight. TGI Friday was not quite ready for the massive demand the promotion would bring, and couldn’t cope with the demand for coupons. After the promotion Woody disappeared from the TGI Friday Facebook page. From a legal standpoint the company could have seen thousands of claims for compensation if the coupons were not delivered to them under the Consumer Protection from Unfair Trading Regulations 2008. CHECKLIST 1. Has the collateral to be used in the promotion passed copyright and trademark checks for ownership? 2. Has any user-generated content that is to be used in or after the promotion has ended, had permission sought and granted by the material’s copyright owners? 3. Has the promotion been assessed under the provisions of the CAP Code? 4. Has the terms and conditions of each social media site been taken into account and related to the CAP Code? 5. Has possible re-tweeting of the promotion been taken into consideration when resources are allocated and terms and conditions are created? 6. Has your company assessed and is prepared to assign additional resources if the promotion is more successful than anticipated? Example of how to avoid an ad looking like it is sponsored by Pinterest (right). See more at http://business. guidelines/#ads 18
  19. 19. As Facebook has become the world’s most popular social media network, it is ideal for competitions and promotions. Marketers must, however, ensure that all their contests fall within the guidelines that Facebook sets out. Facebook clearly states that it is the sole responsibility of the contest or competition promoter to ensure it fully complies with all regulations that impact on it. Facebook will not be held responsible for any legal action that consequently ensues after the promotion has gone live. The important aspect of the Facebook terms and condition with regard to promotions is that your business can’t have as a qualifying factor any kind of registration or insist that an entrant to a competition ‘likes’ your business before their entry is accepted. Or use the Like button as a voting mechanism. Source: Facebook Guidelines CASE FILE A competition on Co-op’s Facebook page, which ran during August 2011, stated: “Are you a dab hand in the kitchen? A budding chef in the making? Design a sandwich in our unique competition and the winner will receive £1,000 in cash plus the sandwich will go on sale in our stores with their name on it! It’s all in the making. Enter now ... Ts and Cs apply. See website for details.” The complainant, who was one of the competition finalists, challenged whether it had been administered fairly as they believed the winning entry had breached the terms and conditions. We noted that the complainant believed that the winner of the competition had received multiple votes throughout the course of the competition. We also noted that Co- op had used cookie-based tracking to register votes for the competition and that the rules of it stated that only one vote per person was permitted during the voting process. However, because Co-op conceded that this system was open to abuse, and that a member of the public could register more than one vote by disabling or clearing the cookies on their computer, we considered that the cookie-based tracking was not sufficiently robust to ensure that the ‘one vote per person’ rule could reliably be enforced. We noted that Co-op had taken some effort to remove duplicate votes where they could be identified by an e-mail address, which had been given for entry into a prize draw. However, as it was optional for voters to enter their e-mail address, we also noted that this action could not take into account any votes that had been made anonymously. Taking all of this together, we concluded that the competition had not been administered fairly. The competition breached CAP Code (Edition 12) rules 8.2 (Sales promotions) and 8.14 (Administration). Source: ASA FACEBOOK PROMOTIONS TERMS & CONDITIONS 19
  20. 20. Respondents: 183 Respondents: 183 PERCENTAGE% 020406080100 HAVE A PLAN TO AVOID VOTE RIGGING? 36.1% ENSURE ENDORSEMENTS AND SPONSORSHIP USE HASHTAGS #AD #PAID #SPON? 29.2% USE T&CS WHERE NECESSARY? 97.2% HAVE A PROCESS FOR MANAGING DATA / CONTACTS ACQUIRED DURING A COMPETITION? 68.1% IF YOU MANAGE PROMOTIONS, COMPETITIONS AND ENDORSEMENTS IN SOCIAL MEDIA, DO YOU... are knowledgeable about data protection and privacy laws 51% 57% of companies consider using data gathered from social networks to be a social media legal risk and Shhh... 20
  21. 21. Social media law may at first glance relate only to marketers, but increasingly businesses are realising that HR must also take care when using social media networks in their activities. The use of social media profiles as a tool for recruitment is growing rapidly. A report from Bullhorn Reach stated: “While 21% of recruiters are connected to all three (Facebook, Twitter and LinkedIn) social networks, the data shows that 48% of recruiters are using LinkedIn exclusively and are not leveraging the other two networks for social recruiting. Known as the “professional network,” LinkedIn has over 200 million active members who use the site to search for jobs and manage their professional identities. Not surprisingly, we found that LinkedIn is the most widely used network for social recruiting, followed by Twitter and then Facebook. “Our data reveals that Twitter usage exceeds that of Facebook for social recruiting and that recruiters are rapidly ramping up their use of the network. With more than 100 million active users, Twitter has become the second most adopted network among recruiters with 19% using it in combination with LinkedIn for recruiting. Known as the world’s largest social network, Facebook is the network least connected to by recruiters, with only 10% using it in combination with LinkedIn for recruiting. Our data supports the fact that recruiters are using LinkedIn and Twitter more often than Facebook for social recruiting.” It is vital that HR, marketing and PR departments integrate their efforts when using social media to avoid potential litigation. The demarcation lines between posting comments on social media networks as an individual and as an employee are blurry at best when it comes to case law. MIXING STAFF AND SOCIAL PART 5 48% 21% 1%1% 1% 10% 19% LinkedIn is the most widely used network for social recruiting, followed by Twitter and then Facebook. THE RIGHT TO PRIVACY? Examples here include Teggart v TeleTech UK Ltd where an employee was dismissed for posting offensive comments on his Facebook page. When the case came to a tribunal it was ruled that as he had placed his comments on a publicly accessible site and could therefore, not rely on his right to privacy and a private life under the Human Rights Act. His comments were defined as harassment with his claim for unfair dismissal being rejected by the tribunal. 21
  22. 22. The use of social media to research candidates for new jobs seems rife at the moment. Is this legal? Under the Data Protection Act an employer would need a candidate’s consent to use online social network content in candidate screening in the UK. Even if this were permissible it is still unadvisable as sifting through entries in a screening process could reveal information that may enable a candidate to claim discrimination (such as sex, sexual orientation, disability and race) as the reason for the applicant’s rejection. Who owns a tweet or blog post? If an employee places a defamatory statement on their company’s social profiles, what can a business do in the context of discipline or possible dismissal? Misuse of social media is dealt with as any other disciplinary offence in relation to misconduct. The sanction for such misuse needs to be considered in line with your social media policy and your disciplinary procedure. The employee needs to be forewarned if the outcome of any disciplinary process is likely to be dismissal. There are cases which act as guidelines in this type of case. If you are in any doubt, you should consult an employment law specialist. Can you outline a recent case where social media was used as evidence in an employment tribunal for unfair dismissal? In the widely reported case of Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) (16 November 2012), a Housing Manager added a post to Facebook describing gay marriage as an “equality too far”. The Housing Trust that employed him suspended him on full pay, subject to disciplinary investigation. They concluded that he was guilty of gross misconduct and that dismissal was therefore applicable. However, due to his long service, instead of dismissal he was demoted with immediate effect. It followed that he received a 40% pay reduction. He appealed and whilst his appeal was dismissed, a phasing in of his salary reduction was reduced from one to two years. The employer did not have a social media policy. The Courts held that there was a repudiatory breach of contract and that he was unfairly treated. Can you place vicarious liability in the context of social media? Equal Opportunities policies and bully & harassment policies apply to social media postings. If an employee makes derogatory comments online and engages in a cyber- bullying campaign against another employee, an employer can be vicariously liable for their employees’ actions. What are the key legal components that an employment contract should have regarding social media usage? I am told companies are now trying to shift the responsibility for the content of tweets etc. to their employees? Is this legal? The responsibility would be difficult to shift especially if the employee is using social media networks on their employer’s behalf. Vicarious liability would be applicable even if the employee was engaged on a personal social networking site in their own time, so long as they are identifiable as linked to the employer and the comments can be widely viewed, thereby breaching the employer’s policies and bringing the employer into disrepute. There are no specific laws that deal with this. Employers therefore must use existing legislation and then apply the principles of those cases that have been heard and adjudicated by Employment Tribunals. The more control an employer exercises using the employment contract, such as restrictive covenants, intellectual property and confidential information together with the Social Media Policy, the more difficult it will be for them to shift responsibility to the Q&A INTERVIEW with Melissa Powys-Rodrigues, Associate Solicitor, Colman Coyle Solicitors 22
  23. 23. employee. If the employer wants to own the intellectual property created via social media networks then they will no doubt have these clauses added to the contracts and the policies to the staff handbook. I do not think that they can have their cake and eat it. It is a matter of training employees and monitoring what is being said. Any other comments you would like to make regarding employment law and social media? As there is no social media specific legislation (or amendments to existing legislation) and no published guidelines on how to deal with cases of this nature, employers need to glean guidance from the cases that have been before an Employment Tribunal. Lawyers are able to provide guidelines on what is best practice in this area, but being largely unchartered territory it can be a fairly tricky area of the law. One thing is for sure; you have a better chance of defending your position if you have the relevant policies in place and use them effectively. LEGISLATION Human Rights Act 1998 Regulation of Investigatory Powers Act 1998 Data Protection Act 1988 23
  24. 24. The use of social media networks by employees has been a contentious issue, but one that HR departments have to manage. Employment law had not envisaged a communications channel that could be used by employees to reach the customers of their employers in such an intimate way. However, case law such as Seaman & Cooke 2010 has shown that if employees who make false statements – in this case on their Facebook page – can be deemed defamatory because of the inaccurate nature of the comments used. What has become clear is that HRs need to develop their own media policy that clearly sets out what is appropriate content for the social networks used by their employees. A clear example is the Joe Gordon case who was dismissed as an employee at Waterstones for writing inappropriate content about his employer on his blog. This case was outlined by ACAS in their research paper: ‘Workplaces and Social Networking The Implications for Employment Relations’ stating: “Joe Gordon is widely known as the first British blogger to be dismissed for work- related comments made online. Gordon wrote a general, allegedly humorous, blog, entitled the Woolamaloo Gazette, about his life that occasionally touched on his work at the Edinburgh branch of the bookseller Waterstones. The comments about work included complaining about his shift pattern, referring to his manager as “evil boss” and calling him a “cheeky smegger” for asking him to work on a bank holiday. He also referred to the firm as “Bastardstone’s” (Gordon 2004, Barkham 2005). Gordon was dismissed from his position in early 2005 following a disciplinary hearing, but successfully challenged the decision on appeal, following the case’s high profile in the media.” The social media usage policy of all organisations needs to be written with the view to balance. Businesses understand that there is a commercial component to social media they can’t ignore, but limits have to be placed on employees to reduce the potential for damaging comments. However, the laws that protect whistle blowing (‘protected disclosure’) must be protected to ensure that your social media policy doesn’t infringe on this right that all employees have. For HRs social media is somewhat of an unknown entity. Until we have enough case law and also tests via employment tribunals, all that HRs can do on a practical level is ensure that their employee policies are clear about what is allowed when social media networks are considered, and takes into consideration existing legislation that impacts on privacy, intellectual property and libel. CHECKLIST EMPLOYER PROTECTION • Ensure that their employee handbooks include detailed guidance on what their company expects when social media networks are used. • Managers should be equipped with training to ensure the staff under their supervision can be properly educated about the accepted use of social media sites. • Employers can monitor access and use of social media networks by their employees, but this must be clearly stated in – and agreed to – by employees in their employment contract. • Any postings that are made to social media sites should be clearly marked as either personal views of employee, or that their comments are sanctioned by their employers and reflect the company view. • Who owns the comments made on social media networks must be clearly defined. When an employee leaves, yet wishes to keep using their own social media accounts, how their comments about their previous employer should be taken down or otherwise managed. If you have a social media policy, does it cover both use at work and outside of work? of companies ensure that their policy covers out of working hours 22% THE VIEW 24
  25. 25. Employee’s social networking activity can have a huge impact on every business. It is vital that a policy document is developed that concisely sets out what your business expects from everyone using social media. Today it’s not commercially sensible to ban the use of social media networks. A social media policy can ensure that everyone in your company understands how to use these networks to minimise the legal risks they pose. However, a social media policy shouldn’t be a dusty document left on a shelf or buried in the employee handbook. Keep it direct, concise and interesting – it should aim to engage and be relevant to your employees. What should a social media policy include? Before you even begin, ‘social media’ should be defined. Your policy should make it clear that any site that is within the social media sector is covered by your policy, not just the social media networks that are mentioned by name. Ensure your policy is very clear that it covers both inside and outside of traditional working hours – social media is 24/7 and your policy should reflect that. Inform employees if your business intends to monitor their usage of social media networks [during work hours?] and that access can be withdrawn if misuse is identified. You should lay out how your employees can talk about your business, products, customers or clients online. It should be clear that the material your employees are posting reflect their own views rather than those of the company. Reiterate how your employees should treat both their colleagues and other people on the internet. What they post should not be obscene, defamatory, profane, libellous, threatening, harassing, sexist, racist, prejudiced, abusive, hateful or embarrassing to another person or entity. Take your draft policy to your legal team and ensure that it is compliant and as watertight as possible. But do also make sure that it is readable and employee friendly. Remind employees that copyright applies to their social media activity. Emphasise the importance of ensuring the correct level of privacy settings on personal accounts and that employees should understand social networks terms and conditions before setting up an account. Ultimately, your social media policy should be designed around your business. There is no set template to a social media policy and you have to consider how you want your employees to use social media. YOUR SOCIAL MEDIA POLICY Don’t stop at a training course: allow teams to play-out possible scenarios and ask the question ‘what if?’ By problem solving as a group it will allow your business to create simulations of likely issues. TIP To lift your social media policy off the page Include case studies and possible scenarios to relate your policy to the everyday TIP And remember: Social media keeps changing. Not just the technology, but customer behaviour changes. Sometimes very quickly. Your social media policy should be regularly reviewed and updated to include these changes. The best way to manage this is to create a cross functional working group of senior people. Issues and changes can be discussed as well as programmes and communications refreshed. Better still, feedback and revisions to the policy will keep it fresh and relevant. 25
  26. 26. Clients We work with multinational brands, charities and public sector organisations on UK, European and global programmes. We work across all sectors. immediate future is one of the UK’s most respected social media consultancies. Since 2004 we’ve helped clients take a strategic view of how social media can add value to their business. How can we help? We can help you increase your brand’s visibility; grow revenues; enhance sales cycles; and manage policies, employee frameworks and training. We can answer the big questions: • What is the business case for investing in social media? • How do we develop a holistic social media strategy? • How can I make sure my workforce understand the ramifications of social media communications • What is best practice in social media deployment? • How do we find the resources to manage social media activity? • How do we build the skills and capabilities of our team? • How can we measure successes and ROI? Let’s discuss Give Katy a call on 0845 408 2031 or email IMMEDIATE FUTURE 26
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