The rise of digital marketing and social media has provided a tremendous opportunity for businesses to engage consumers. However, this fast-paced and ever-changing social landscape is littered with legal landmines and challenges. Gowling WLG’s “Risk to Reward” series is designed to address the most important legal, regulatory and corporate risks facing your organization. With 18 offices around the world, Gowling WLG is uniquely positioned to provide risk advisory services wherever your business takes you. Our legal teams are in tune with your world, your sector and your goals. Join us for one or all of the presentations in this series to transform the risks you face into rewards. Learn more: gowlingwlg.com/risktoreward

1. SOCIAL MEDIA
MARKETING
DANIEL COLE

2. RULES OF THUMB…
2

3. THIS MAY NOT BE YOUR
PLAYGROUND…
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4. extremely powerful communication tool
+
ease of dissemination
+
wide and diverse audience with differing opinions, tastes, senses of
humour and tolerances
+
inability for shared materials to be “private”
=
RISK
no matter how careful you are… no matter how private you think
you are being… you cannot control the outcome
THE FORMULA…
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5. 1. Always Remember: Advertising on social media is subject to the same basic
rules, regulations and policies that apply to other more traditional forms of
media.
• contest law;
• false and misleading advertising;
• privacy law;
• IP infringements;
2. BUT…you also now need to consider each social media site’s:
• terms of use;
• licenses;
• advertising guidelines;
• contest and promotions guidelines;
3. CAUTION: These terms and conditions are revised very frequently and it is
your responsibility to stay in compliance!
SAME OLD, BUT…
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6. it was funny…
JUST WHEN YOU THOUGHT…
6

7. it was helpful…
JUST WHEN YOU THOUGHT…
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8. it was a good idea to engage…
JUST WHEN YOU THOUGHT…
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9. it was an appropriate time to respond…
JUST WHEN YOU THOUGHT…
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10. Letting a bot take over was a good idea…
JUST WHEN YOU THOUGHT…
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11. You would join the conversation…
JUST WHEN YOU THOUGHT…
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12. we would never hear again…
JUST WHEN YOU THOUGHT…
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13. Sourcing Content:
1. same rules apply…
2. “commercial” purposes…
3. flow-through license…
4. specific usage rules…
5. implied endorsement…
6. check EACH social media site…
IS STEALING STILL STEALING?
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14. HOW INFLUENTIAL ARE MY
INFLUENCERS?
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15. HOW DO WE CAPITALIZE ON
THAT?
Love a quick #DuaneReade run? Even @KatieHeigl can’t resist
shopping #NYC's favorite drugstore
15

16. HOW DO WE CAPITALIZE ON
THAT?
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17. IS THAT AN AD?!
#ad #sponsored17

18. 1. Employee Policy:
• Clear rules regarding who may Blog, Post, or Tweet on behalf of company;
• Require representatives to comply with the WOMMA Code of Ethics, including by
identifying themselves as authorized company representatives;
• A clear outline of the potential repercussions should an employee or representative
break the rules
2. Moderation Policy:
• A discussion of how the online community will be monitored;
• Identify how certain materials will be dealt with when identified, including whether
there will be an overarching discretion to remove any content
3. Posting Policy:
• The rules that community members must follow when posting content. For
example:
– users must have the rights to all materials they post;
– opinions appearing on the site are not necessarily those of company;
– posters agree to keep their posted content civil, and not to post offensive
materials
SOCIAL MEDIA POLICIES
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19. Moderation is the Key:
1. The site needs to be moderated virtually 24/7
• Things can (and often do) go awry VERY quickly!
2. The moderators need CLEAR direction
• The moderation policy needs to identify not only HOW certain materials will be
dealt with… but also WHO is responsible for dealing with them…
– Malicious post against another user – moderator?
– Complaint about the functionality of the product? – product representative?
– Negative comments about a sensitive political situation – PR Team?
• Ensure that matters are dealt with swiftly, appropriately and by the right people!
3. MODERATION IS A DOUBLE-EDGED SWORD!!!
• it is often NOT desirable to appear as “Big Brother” on a social media site… but
• material which breaches third party rights, or offends certain
community standards should not remain on the site.
PLEASE… MODERATE!
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20. Minimizing Exposure :
1. CLEARLY explain the types of materials that are NOT permissible
“Content must not be defamatory, trade libelous, pornographic or obscene, and must not contain, depict, include,
discuss or involve, without limitation, any of the following: nudity; alcohol/drug consumption or smoking; explicit or
graphic sexual activity, or sexual innuendo; crude, vulgar or offensive language and/or symbols; derogatory
characterizations of any ethnic, racial, sexual, religious or other groups; content that endorses, condones and/or
discusses any illegal, inappropriate or risky behaviour or conduct; personal information of individuals, including,
without limitation, names, telephone numbers and addresses (physical or electronic); commercial messages,
comparisons or solicitations for products or services other than products of Sponsor; any identifiable third party
products, trade-marks, brands and/or logos, other than those of Sponsor (e.g. any clothing worn and/or products
appearing in your Video must not contain any visible logos, trade-marks or other third party materials unless the
appropriate consents have been obtained (note: all identifiable third party products, trade-marks, brands and/or logos
for which consent has not been obtained by the entrant must be blurred out so as to be unrecognizable); conduct or
other activities in violation of these Rules; and/or any other content that is or could be considered inappropriate,
unsuitable or offensive, all as determined by the Sponsor in its sole and absolute
discretion.”
LIMITING LIABILITY
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21. Minimizing Exposure:
• Depending on the context… DO NOT allow material to be directly posted
online without first being passed through a content moderator
“The Sponsor and/or its promotional agency or designated content moderator (the “Reviewer”) reserves the right to
screen all Entry Materials. Any Entry Materials that the Reviewer deems, in its sole and absolute discretion, to
violate the terms and conditions set forth in these Rules are subject to disqualification. The Reviewer reserves the
right, in its sole and absolute discretion at any time and for any reason, to remove any Entry Materials (or any part
thereof) and/or to request an entrant to modify, edit and/or re-submit his or her Entry Materials (or any part thereof) in
order to ensure that the Entry Materials comply with these Rules, or for any other reason. If such an action is
necessary at any point during or after the Contest, then the Sponsor reserves the right, in its sole discretion, to take
whatever action it deems necessary based on the circumstances – including, without limitation, disqualifying the Entry
Materials (and therefore the corresponding Entry and/or the associated entrant) and/or resetting the Vote (as defined
below) count to zero or whatever other number the Sponsor considers to be appropriate in the circumstances – to
help ensure that the Contest is being conducted in accordance with the Sponsor’s interpretation of the letter and spirit
of these Rules.”
• DO NOT “approve” anything…
LIMITING LIABILITY
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22. • Minimizing Exposure :
1. Allow users of the site to contact you regarding any material on your site
that they consider inappropriate
2. Give the community a chance to self-correct (e.g. trolls and malicious
posters are often dealt with swiftly by the community) – BUT, be
prepared to step-in
3. ALWAYS consider PR issues and consult legal before issuing an
apology or admitting liability
LIMITING LIABILITY
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23. Key Considerations in Responding:
1. Keep in mind that the page has a public audience;
• Always respond in a timely manner;
• Be positive, energetic and engaging;
• Avoid cookie-cutter responses and legalese;
2. Anything you say/send/post may be used against you;
3. Remember that social media users place an extremely high premium on
transparency and openness;
4. Be consistent across your social and other advertising channels.
ENGAGEMENT…
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24. ALWAYS REMEMBER…
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25. gowlingwlg.com
Gowling WLG (Canada) LLP is a member of Gowling WLG, an international law firm which consists of
independent and autonomous entities providing services around the world. Our structure is explained in
more detail at gowlingwlg.com/legal
CONTACT
Daniel Cole
daniel.cole@gowlingwlg.com
814-5666