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Social media marketing, the law and you - 12 sept 2013

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Social media marketing, the law and you - 12 sept 2013

  1. 1. The Power of Language: Social media in a crisis Magnus Carter, Principal Consultant Mentor Communications Consultancy Ltd Direct Marketing Association Social Media Event Thursday 12th September 2013
  2. 2. We don’t need more words • 645,000 words in the Oxford English Dictionary • 25,000 words used in Shakespeare • 20,000 words commonly understood • 10,000 words used in The Sun
  3. 3. The Golden Rule • Get the language right, get the tone right – or fail to communicate
  4. 4. Sally Bercow gets it wrong Sally Bercow: Described herself as a 'TOTAL irresponsible eejit' in a tweet in November last year after asking why McAlpine was a ‘trending topic’ Lord McAlpine: I forgive everyone - except Sally Bercow
  5. 5. Avoid ‘corporate speak’ 1 • “We are undertaking an accelerated facility restructuring and acquisition integration programme.” Allen Yurko, Siebe chief executive • Translation: We’ve over-reached ourselves, so we’ve had to sack 4,000 people.
  6. 6. Avoid ‘corporate speak’ 2 • “Root cause continues to be lack of mainframe resources due to continuing record usage rates, year end processing demands, and contingency-system-resource constraints. These were again detected early with mitigations beginning immediately. System resources from development/test regions have been allocated to production to help with the load, and the team performed special load balancing. IT will continue close systems monitoring and other measures will continue in order to mitigate further disruptions. This will be our final communication on this issue but we will continue our communications if system issues persist.” • Translation: Because everyone is using the same system at the same time, the computers are slow and people started whining. We stole some processing power from other stuff to help. Leave us alone.
  7. 7. The Jargon Generator Column 1 Column 2 Column 3 Client-oriented Input Evaluation Peripheral Compatibility Strategy High-Profile Awareness Rationale Multi-disciplinary Viability Initiative Inter-European Communications Function Socio-Economic Analysis Package Para-National Fragmentation Potential Corporate Penetration Spin-off Segmental Stratification Criteria Integrated Database Infrastructure Demographic Incentive Concept Projected Feedback Indices
  8. 8. Getting down wif da kidz? Bless: approval of something good Blood: brother, from the same gang or area Buggin': to freak out, panic Crib: home For real: approval of what has just been stated G's: thousands (of pounds) Ghost: to leave the area or hide something Hold it down: keep quiet Hood: a neighbourhood, the streets Mandem: men, often from another gang Shanked: stabbed Swif: a promiscuous male You feel me?: Do you understand
  9. 9. Corporate speak or wif da kidz? • Neither! • Who are we speaking to? • How do we want to appear to them?
  10. 10. Putting the audience first • It’s not about us, it’s about THEM • Put yourself in their shoes • How will they be feeling? • What do they need to know? • What do they need to hear?
  11. 11. When it all goes wrong • The most powerful word in the language? • SORRY
  12. 12. Kegworth Air Disaster, Jan 1989
  13. 13. The magic formula • C • A • RE
  14. 14. The magic formula • CONCERN • ACTION • REASSURANCE
  15. 15. What’s new? • News travels fast 24-hour news culture and the internet • Democratisation Social media means consumers & activists can have influence on a par with companies and governmental agencies • Interactivity Loss of control and deference. It’s a conversation
  16. 16. Social media: written or spoken? • In conversation, we speak as we think, without reflection • E-language is a conversation too • BUT... • Our ‘audience’ loses the benefit of tone, gesture, body language (NON-VERBAL) • SO... • Meaning and intent can be misunderstood
  17. 17. Social media: written or spoken? • That’s why we had to invent emoticons:  
  18. 18. The communication challenge • To be engaging, human and ‘chatty’ without losing meaning. • SO... • Pause, engage brain, review and revise • BUT... • Avoid becoming formal, pompous or ‘corporate’
  19. 19. A final thought • With all due respect, it’s not rocket science. In order to change our client-oriented penetration paradigm going forward, we require an integrated communications strategy: • KISS
  20. 20. A final thought • With all due respect, it’s not rocket science. In order to change our client-oriented penetration paradigm going forward, we require an integrated communications strategy: • Keep It Simple Stupid
  21. 21. Magnus Carter 0117 305 8900 Direct Marketing Association Social Media Event Thursday 12th September 2013
  22. 22. Social Media and Marketing Tom Harding - Senior Associate 12 September 2013
  23. 23. The next 30 minutes… • Legal back to basics – EU Unfair Commercial Practices Directive and other regulation/restrictions • Social media marketing – recent examples and lessons • Twitter and Facebook promotions 55
  24. 24. Legal back to basics 1 - CPRs • EU Unfair Commercial Practices Directive • UK Implementation - Consumer Protection from Unfair Trading Regulations 2008 ("CPRs") • in particular to social media: – 'using content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)' (Sch 1, para 11) – 'falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer' (Sch 1, para 22) 56
  25. 25. Legal back to basics 2 - CAP Code • ASA-enforced UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing ("Cap Code") applies to any marketing activity in social media provided it is: – under the advertiser's control and directly connected with the supply or transfer of goods, services, opportunities and gifts • Non-paid for space expressly within remit (i.e. social media platforms and channels) • In particular: – marketing 'must be obviously identifiable as such' (para 2.1) – marketing 'must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession … [and] must make clear their commercial intent, if that is not obvious from the context' (para 2.3) – 'Marketers and publishers must make clear that advertorials are marketing' (para 2.4) – 'Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it' (para 3.45) 57
  26. 26. Summary - basic rules • Make it clear that an ad is an ad (and not someone's post) – IBA/ISBA Guidelines • disclose any payments • adhere to any platform rules • '#ad' Twitter disclosures • Always remember the Cap Code – must comply if UGC adopted, highlighted etc by advertiser – re-Tweeting could trigger CAP Code testimonial rules – see CAP's 'Rules of Social Engagement' Advice, June 2013 • make sure user generated content is appropriate, if it’s part of your advertising – expectation of monitoring if invited comment/UGC • make clear that it’s an ad • target your audience appropriately • take care with competitions 58
  27. 27. OFT vs Handpicked Media (Dec 2010) • Handpicked Media operates a commercial blogging network • As part of its client services, it engages bloggers to provide editorial coverage of topics e.g. fashion, music • Blogs include favourable references to Handpick's clients • Appear on various sites including Twitter • No mention of commercial connection between blogger and brands • OFT imposed undertakings 59
  28. 28. Product reviews ebuyer and the ASA (Dec 2011) • Website for online electrical goods • "Foehn & Hirsch Portable WiFi Internet Radio (black)" and showed four and a half stars • Further text states "17 reviews", all favourable • Complainant's negative review does not feature, complains to the ASA • Ebuyer: "current filters are pre-set to show those ratings which are most useful and these will be more positive than negative" • UPHELD 60
  29. 29. TripAdvisor and the ASA (Feb 2012) • The TripAdvisor website states • "read reviews from real travellers…offers trusted advice…more than 50 million honest travel reviews" • on review pages is TripAdvisor logo and "Reviews you can trust" • KwikChex Ltd - complains to the ASA that the above is misleading as TripAdvisor does not verify reviews and cannot not prove they are genuine • TripAdviser - no review site can guarantee it is 100% fraud free. Not practical to manually screen all reviews pre post. All reviewers have to click to confirm that their review is honest and genuine • UPHELD 61
  30. 30. Moonlight Apartment Durham and the ASA (April 2012) • 'Durham's most luxurious self-catering apartment', featuring a 'ridiculously well-equipped designer kitchen'. • Incorporated a TripAdvisor widget, but also a standalone review • "...This TripAdvisor Member: Liked ? Location, personal attention to details Disliked ? nothing Mazza08 Dubai, September 2008". • KwikChex Ltd - complains to the ASA that MAD could not substantiate review was genuine • MAD – not always possible to identify TA reviewers, but only one visitor from Dubai. Later verified the review. • UPHELD: Contact details and proof that testimonial is genuine are needed pre-publication 62
  31. 31. Mars/ Rio Ferdinand and the ASA (March 2012) • Rio Ferdinand, Katie Price & others start posting a series of 5 odd Tweets ending with their photo with a Snickers bar • Last Tweets link to an @snickersUKhungry#spon account set up by Mars • Unclear whether the personalities are paid by Mars • Mars – only last Tweet was marketing, or first 4 only became marketing when the last was revealed • NOT UPHELD 63
  32. 32. New Era Global Sports Management/Rio Ferdinand and the ASA again (April 2012) • Rio Ferdinand posts a series of Tweets regarding a competition to give away football tickets • Users had to download the Rio Ferdinand App to enter • Complainant argued that the promotion was misleading because it did not make clear the competition T&Cs, including how the winner was picked at random • NEGSM – entry conditions were made clear across the Tweets • NOT UPHELD BY ASA 64
  33. 33. Toni and Guy and the ASA (July 2012) • Gemma Collins tweets: "10% off @Toniandguylside I have the most amazeballs hair colour and condition best salon ever call and say #gemma for discount xx". • Toni and guy: While the tweets did not include the terms "marketing", "sponsored" or "advertisement", the mention of a 10% discount made it clear that the tweets were marketing communications • UPHELD • the average Twitter user would follow a number of people on Twitter and receive a number of tweets throughout the day, which they might scroll through quickly • the CAP Code did not just require ads to be identifiable as marketing communications but that they must be obviously identifiable as such 65
  34. 34. Antica Sambuca and the (ASA Jan 2013) • Facebook Page - • Uploaded UGC photos of people in a bar • ANTICA: photographs were not advertising, nor a sales promotion or a marketing communication to which the CAP Code applied. • ASA: photos were marketing in non-paid for space • '…the images showed that an abundance of alcohol was available and had been consumed …the poses and behaviour shown in several of the images suggested that some of the individuals present had consumed a large quantity of alcohol and were intoxicated.' • UPHELD – promoted excessive drinking/irresponsible 66
  35. 35. Social media promotions on Twitter • See Twitter's Guidelines for Contests on Twitter which require: • promotion rules should disqualify entrants using multiple accounts • repeated re-Tweets be discouraged (e.g. "whoever retweets the most wins" mechanic not permitted) • ask users to include an @reply to you in their update so you can see all the entries 67
  36. 36. Social media promotions on Facebook • Promotions terms updated 27th August 2013: • no longer a requirement to only run via an app • can now: • collect entries by having users post on the Page or comment/like a Page post • collect entries by having users message the Page • utilize likes as a voting mechanism • must state that the promotion is in no way sponsored, endorsed, administered or associated with Facebook 68
  37. 37. T&Cs for social media promotions • Public voting • How many votes during voting period? • Voting criteria? • Improper voting (inducements/automated systems) • How to resolve a tie? • IP assignment/licence and moral rights • Original work? Third party content or involvement? • Inappropriate content? • Future use of entries? 69
  38. 38. Any Questions? +44 (0)117 917 3060
  39. 39. Tracing Cybermen Ben Holt Associate Director
  40. 40. What I'll be covering • Recent case law in digital media • Uncovering hidden identities • Getting offensive material removed • User generated content and liability of host 72
  41. 41. 73 Brookes v Facebook • ‘Keep your chin up, Frankie, they’ll move on to someone else soon.’ • Norwich Pharmacal • “Lawyers, like vultures, have been waiting for this moment. Welcome to their beanfeast” • Nothing new?
  42. 42. 74 McAlpine v Bercow [2013] EWHC 1342 (QB) • "[The] ruling should be seen as a warning to all social media users." • Tweet 1:"Why is Lord McAlpine trending? *Innocent face*" • Tweet 2: “Final on McAlpine: am VERY sorry for inadvertently fanning the flames. But I tweet as me, forgetting that to some of u I am Mrs bloody Speaker”. • Mr Justice Tugenhadt: "…insincere and ironical..."? •
  43. 43. 75 Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] UKSC 55 Lord Kerr: “An “intense focus” on the rights being claimed in individual cases does not lead to the conclusion that the individuals who will be affected by the grant of the order will have been unfairly or oppressively treated. On the contrary, all that will be revealed is the identity of those who have, apparently, engaged in the sale and purchase of tickets in stark breach of the terms on which those tickets have been supplied by the RFU.”
  44. 44. 76 Tamiz v Google Inc [2013] EWCA Civ 68 • An "unassailable defence"? • Google = publisher? • The owner of a wall “festooned with defamatory graffiti” or of a golf club notice board? • Different outcome if served in jurisdiction?
  45. 45. 77 Scenarios Issues • Defamation • Intellectual Property • Cyber-squatting • Unlawful Trading • Breach of Restrictive Covenants • Harassment • Other breaches
  46. 46. 78 Scenarios Common Media • Internet Forums • Social Networking Sites • Bespoke Websites • User Generated Content
  47. 47. 79 Identifying the Author • The Website • Whois • Legal Options: – CPR 31.16: Pre-action disclosure – CPR 31.17: Third-party disclosure – CPR 31.18: Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133
  48. 48. 80 Removing • Host / ISP – Report abuse – Godfrey v Demon Internet Service [2001] QB 201 – "E-Commerce Directive" (Directive 2000/31/EC) – Lawyer’s letter / Infringement or "take down" notice • Author – Injunction? • Nominet – Dispute resolution service
  49. 49. 81 User Generated Content • Secondary publisher / innocent dissemination • Full moderation, some or blind eye? • "Pub Talk": Sheffield Wednesday v Hargreaves [2007] EWHC 2375 (QB) • The Future: Defamation Act 2013 • "serious harm" • Responsibility for user-generated content
  50. 50. 82 Contact Details Ben Holt Commercial Litigation Associate Director T: 0117 917 3596 F: 0117 917 3597 E: