Your Best Practice Guide to Social Media and the Law
TO SOCIAL MEDIA
AND THE LAW
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
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
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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
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
The recently published social media
and the law benchmark report
reveals that two-thirds of companies are not
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
have basic, beginner or
no personal knowledge
of social media law
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
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
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
• 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.
THE LAW OF
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
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.
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
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
"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."
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.”
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
Don’t keep personal
data culled from
networks for longer
than you need to,
as this is a basic
principle of the Data
Protection Act 1998.
3 out of 5 companies
are not conﬁdent that
sensitive or conﬁdential
information is protected
on social media platforms
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?’
ALL RIGHTS RESERVED?
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
UK companies that
are very aware of
rights in social media
‘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:
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.”
Chairman, Social Safe
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.”
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
• 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
• 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
rights of user
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 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
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.”
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
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.
of social media professionals are not very
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
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
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
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
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
“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
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
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
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.
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
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.
1. Why is a tweet being sent? It is
important to ensure that content is
always in support of well-defined
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
5. Re-tweeting content should be
considered and materials checked for
6. Does your company’s security policy
include Twitter and how this should
Defamation Act 1996
Protection from Harassment
from Unfair Trading
The Business Protection
from Misleading Marketing
The Fraud Act 2006
Copyright, Designs and
Patents Act 1988
The Trade Marks Act 1994
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.
It is vitally important that marketers are fully aware of the laws and regulations that impact on promotions.
are aware of
to be a social media
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
Track all re-tweets of competitions
as these can often be made
without the important link to your
terms and conditions.
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
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
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
When using social media
networks like Twitter for
promotions, clearly indicate
that the tweets are for
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
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.
Show us your
& FAVOURITE SHOP
Show us your board
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.
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.
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
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
Source: Facebook Guidelines
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
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
The competition breached CAP
Code (Edition 12) rules 8.2 (Sales
promotions) and 8.14 (Administration).
HAVE A PLAN
TO AVOID VOTE
AND SPONSORSHIP USE
HASHTAGS #AD #PAID
HAVE A PROCESS
DATA / CONTACTS
IF YOU MANAGE PROMOTIONS,
COMPETITIONS AND ENDORSEMENTS
IN SOCIAL MEDIA, DO YOU...
are knowledgeable about data
protection and privacy laws
of companies consider using data
gathered from social networks to
be a social media legal risk
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.
LinkedIn is the most widely used
network for social recruiting, followed
by Twitter and then Facebook.
THE RIGHT TO
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.
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
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
Can you outline a recent case
where social media was used as
evidence in an employment tribunal for
In the widely reported case of Smith v
Trafford Housing Trust  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
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
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
with Melissa Powys-Rodrigues,
Colman Coyle Solicitors
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.
Human Rights Act 1998
Regulation of Investigatory
Powers Act 1998
Data Protection Act 1988
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
“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.
• 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
• 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
• 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
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
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
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.
To lift your social media
policy off the page
Include case studies and
possible scenarios to relate
your policy to the everyday
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.
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
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
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?
Give Katy a call on 0845 408 2031 or email email@example.com