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Lewis Silkin's Don't get it wrong #socialmedia Seminar Presentation


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This presentation is from Lewis Silkin’s Don't get it wrong #socialmedia semina on the 17th April 2012. Simon Morrissey and Jo Farmer, Partners in the Media, Brands and Technology department look at social media and the legal and regulatory aspects of its use in advertising.

You can view the youtube playlist of the videos that accompany this presentation here:; or on our website here:

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Lewis Silkin's Don't get it wrong #socialmedia Seminar Presentation

  1. 1. Don’t get it wrong – Social Media Simon M i Si Morrissey, P t Partner Jo F J Farmer, Partner P t Media Brands & Technology Media Brands & Technology Lewis Silkin LLP Lewis Silkin y@ @ #LSsocialmedia #LSsocialmedia
  2. 2. What we will discuss today?1. What are the key drivers for the topics we will discuss?2.2 Section 1 – General Legal and Commercial Issues surrounding the use of UGC and platforms3. Section3 S ti 2 – M k ti campaigns on social media Marketing i i l di
  3. 3. Key Drivers• The use of third party assets: Content Platforms• Brands and their agencies ceding control over the use of platforms and content to third parties• Social media is a heavily regulated media – both in general terms a d in marketing spec c terms e s and a e g specific e s
  4. 4. Key Drivers cont’d• Gulf Air’s Facebook Page
  5. 5. Using 3rd Party UGC• Just because user generated content (“UGC”) is published online does not mean it is freely available for other uses!• Can I own the rights in UGC? > Do contributors have the rights to transfer? > Barriers to ownership?• Can I use the rights in UGC without restriction? > Rights and regulations• Key Point - Ownership of UGC in itself does not mean the owner can do what he/she wants with that UGC
  6. 6. Using 3rd Party UGC cont’d cont d• UGC is subject to 2 statutory rights based systems: Data Protection rights – rights exercised by the data subject > To withdraw consent > Right of subject access > Right of correction/erasure of inaccurate data > Right to prevent distress > Right to compensation Intellectual Property rights – rights exercised by the owner > Trademarks > Copyrights > Design Rights > Moral Rights > Database Rights
  7. 7. Using 3rd Party UGC cont’dThe i htTh rights applicable d li bl depend on th nature of th content! d the t f the t t!
  8. 8. Using 3rd Party UGC cont’d cont d• Key Point – Consider the application of both rights systems to the type of UGC:
  9. 9. When it all goes wrong wrong…
  10. 10. Using 3rd Party Social Media Platforms• Twitter Terms of Use: “You retain your rights to any Content you submit, post or display on or through the Services. By submitting posting or displaying Services submitting, Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free licence (with the right to sublicense) to use, copy reproduce process, adapt modify, publish , transmit use copy, reproduce, process adapt, modify transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”
  11. 11. U i 3rd P t Social M di Pl tfUsing Party S i l Media Platforms• Facebook Terms of Use: “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 i d li ti tti t non-exclusive, transferable, sub-licensable, royalty-free, 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.”
  12. 12. Using 3rd Party Social Media Platforms• Pinterest Terms of Use: “Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, transferable sublicensable worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re arrange, re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users.”
  13. 13. Using 3rd Party Social Media Platforms• Linking to 3rd Party platforms: The application of Third Party Terms and Notices Cookie compliance: p > Are you a web publisher? > Are you reading or storing information on a user’s user s device or have retained someone to do this on your behalf?
  14. 14. Topical Issues• Data Mashing Google’s new Privacy Policy – “one policy to rule them all....”• Pinterest Vanity URLs “ No Pin” code offered to third party content owners
  15. 15. Overview of regulation• Transparency of marketing• Brand ambassadors, bloggers ambassadors• UGC – when and how is it regulated?• Competitions and vote rigging
  16. 16. Transparency: the law• #socialmedialaw: If it is a marketing communication, you must be transparent about the fact that it is marketing p g• The law: Consumer Protection from Unfair Trading Regulations 2008 (CPRs) General requirement not to mislead Must disclose commercial intent must disclose if you are paying f editorial content or t di l i for dit i l t t advertorial Can t Can’t pose as a consumer
  17. 17. Transparency: the law• CPRs:• CPRs enforced through OFT (and Trading Standards and ASA)• Possibility of criminal sanctions P ibilit f i i l ti• First ever case in Dec 2010 – Handpicked Media got in trouble for not disclosing paid for promotional content
  18. 18. Groupola.comGroupola com – March 2011
  19. 19. Groupola.comGroupola com• # #socialmedialaw: E l i l di l Employees falsely posing as f l l i consumers to send promotional updates about their company = criminal offence• employee published unidentified positive comments on their Facebook page, i l di F b k including: “Lets face it…if they offer you the same deal in a few weeks time, you will be back to try again regardless of time again, what you think of them now” “I say fair play!…and no - I don t work at Groupola” I play! and dont Groupola• Undertakings given not to make statements falsely representing th t author is a consumer and t give ti that th i d to i prominent disclosures in future
  20. 20. Transparency: Guidance and selfregulatory codes l t d• US FTC guidelines on endorsements and t ti id li d t d testimonials i l• UK is likely to harmonise with the US over time• #ad; #spon; #paid?• OFT guidance• IAB and ISBA Guidelines where payment has been made for editorial content to promote brands within social media: Disclose the fact that payment has been made Comply with social media platform t’s and c’s Comply with the CAP Code (even where it doesn’t doesn t cover the activity)
  21. 21. Brand ambassador tweets: how (not) todisclose?
  22. 22. Snickers: Twitter and Teasers
  23. 23. Snickers: Twitter and Teasers• Teaser tweets: Obviously jokes; no brand references or promotional message• But unlike teaser posters, not obvious that part of a marketing campaign• ASA decision: not upheld: because first tweets didn’t include reference to Snickers and because the reveal Snickers, tweets came quickly• Endorsement by the ASA of the use of #spon and other disclosure hashtags
  24. 24. Olympic athletes
  25. 25. Brand ambassadors• #socialmedialaw: UK has thrown its weight behind the US in recognising #ad, #spon, #paid for brand ambassador campaigns b d i p• “Gold standard” compliance: Not good enough to put disclosure of paid relationship in profile on Twitter, Facebook, Pinterest, Google + Disclosure must be in body of each and every marketing communication
  26. 26. Bloggers• IAB/ISBA guidance: Where marketer pays for content to appear in blog or video blog: must always disclose commercial relationship within the blog any hyperlink to brand must contain “no follow attribute to no follow” comply with Google webmaster guidelines Forums: ask for permission from administrator before asking individuals to conduct WOM Facebook: Do not pay individuals to promote brands (even with di l ith disclosure) as it b ) breaches F h Facebook t b k terms of service f i ( service was banned in April 2011 for paying celebs to endorse products on Facebook). p )• Blogger outreach?
  27. 27. Brands’ own social media channels• Transparency is easy to achieve on brands own social media channels/platforms: Twitter user name: should make it obvious it is from the brand (eg @lewissilkin) Facebook, Pinterest, Facebook Pinterest Google + : should be obvious that it is sho ld ob io s the brand’s page Therefore, Therefore it should satisfy requirements of transparency
  28. 28. User generated content (UGC)ASA has jurisdiction over:• claims made on own website• in other non-paid-for space online under brands control UGC if adopted & incorporated into marketing; and Social Media e.g. Facebook and Twitter• What is a “marketing communication”? marketing communication ? A communication that primarily sets out to sell something – intended to distinguish editorial content on a website• #socialmedialaw: marketers may need to check any UGC to ensure it complies with ASA Code, if they republish/highlight/optimise the UGC on social media platform
  29. 29. Availability? Product description?Price? Free delivery? Does price match illustration?
  30. 30. Testimonials – Withi RemitT ti i l Within R it
  31. 31. Customer Reviews: Not caught (?)
  32. 32. What about foreign websites?• Current rule re marcomms in Foreign Media• “Advertisements in paid-for space that are p p p published on non-UK-registered websites, if targeted at UK consumers, are subject to the jurisdiction of the relevant authority in the country from which they originate if that authority operates a suitable cross-border complaint system.”• “If it does not the ASA will take what action it can Most If not, can. members of the EU, and many non-European countries, have a self-regulatory organisation that is a member of the g y g European Advertising Standards Alliance (EASA). EASA co-ordinates the cross-border complaints system for its members (which include the ASA) ” ASA).
  33. 33. How are ASA decisions enforced?Existing ASA sanctions:• Ad Adverse publicity via adjudications bli it i dj di ti• Ad Alerts• Withdrawal of trading privileges• Pre-publication vetting• Legal Backstop: Referral to the Office of Fair Trading
  34. 34. Specific sanctions for digital communicationsNew sanctions:• Details f ff di D t il of offending ads/advertisers posted t a h d / d ti t d to heavily il publicised ASA micro site• Sponsored links to offending specific page removed, with the cooperation of the relevant search engines• Placing paid-for ads on search engines to highlight continued non-compliance of an advertiser’s marketing p g communication (not an initial sanction – only after warnings)
  35. 35. Competitions• Internet is not a jurisdiction! Global competitions are a logistical nightmare to run for legal reasons.• Always have clear terms and conditions and include link to t’s and c’s in promotional messages. T’s and cs: Closing date Entry mechanic, judging criteria FULL DETAILS of prize and any restrictions must be clear• #socialmedialaw competitions: marketers should consider how to deal with online popularity vote and p p y vote rigging risk at outset.
  36. 36. Mercedes Benz – Vito Van Promotion
  37. 37. Competition – platform specific issues• Facebook Promotion guidelines Terms must release Facebook from liability and make it clear that the promotion is in no way endorsed by Facebook Can’t use “like” button as a voting mechanism, Can’t use other Facebook functionality for entry into competition or for communications about competition• Pinterest –competitions (or any commercial activity) are not permitted without obtaining Pinterest’s prior consent• Google + no competitions can be run on Google +; can only link to other sites hosting the competition• Twitter – okay to run competitions according to their terms
  38. 38. Concluding thoughts• Legal regulation doesn’t distinguish between acquisition campaigns or engagement strategies• UK is a long way behind US in regulatory terms• Th l tt of l The letter f law d doesn’t give much practical guidance as ’t i h ti l id to how to comply; self regulatory codes, guidance from trade bodies have important role to play• #socialmedialaw: Marketers are unlikely to achieve 100% compliance 100% of th ti li f the time, b t need t adopt but d to d t best practices to avoid legal pitfalls
  39. 39. Thank you yAny questions ?