blake lapthorn social media seminar 12 october 2011

Employment law and social media

12 October 2011

A look at the legal and practical issues arising from the use of social and professional networking

Oliver WeissSenior solicitor

[email protected]

mailto:[email protected]

Context

Types of social media– Facebook– LinkedIn– Twitter

Social media usage– 600 million Facebook users worldwide– 100 million LinkedIn users worldwide of which approximately

5 million in UK– 200 million users of Twitter

Context

Additional statistics– Facebook has more traffic per week in US than Google– One in five divorces blamed on Facebook– 25% of FTSE 100 companies hire through LinkedIn– Approximately one new joiner to LinkedIn every second; 1

million people joining every twelve days

Social media in the workplace

Implications of using Facebook and LinkedIn at workSome employers have banned access to social media completelyBut access to social media valued by employers

– internal communications– recruitment– marketing

Social media becoming the “norm”

Misconduct through use of social media

Bullying or criticising colleagues– comments posted on social media sites can amount to gross

misconduct– important to consider carefully both the nature of what has

been posted and all circumstancesInappropriate comments and/or bringing the employer into disrepute– this can amount to gross misconduct even if ostensibly

disseminated to personal friends/contacts only


Criticising employer– Stephens v Halfords: store manager who criticised

redundancy process was held to have been unfairly dismissed

Comments about customers– in Preece v Wetherspoons a bar employee was dismissed

after making disparaging comments about customers on Facebook

Revealing confidential information– revealing strategic decisions or details of internal matters

which have yet to be announced

Social media as evidence of misconduct

****

Social media as evidence of misconduct

Evidence of unauthorised absence– be cautious about jumping to conclusions on the basis of

comments or pictures on Facebook as they do not always tell the whole story

Exercise caution when using social media as a tool of investigation

Data Protection and Human Rights

Data Protection– employer must comply with its obligations under the Data

Protection Act– relevant to recruitment and candidate vetting– ensure that employees do not disclose personal data

belonging to colleaguesHuman Rights– article 8: right to respect for private and family life– article 10: right to freedom of expression

Employer could be liable for comments made by employees

Discriminatory comments– eg racist and sexist comments made by one employee

against another– employer has a defence if it can show that it has taken

reasonable steps to prevent such discriminatory acts– policies and training key to avoiding liability

Defamation

Social media after employment has ended

Soliciting or dealing with clients

– LinkedIn effectively amounts to a database of contacts– Who “owns” the LinkedIn database? This is problematic

because often it consists of a combination of work and personal contacts

– Particularly relevant in context of sales or recruitment based businesses where customer databases are very important


Soliciting or dealing with clients contd.

– Do restrictive covenants in contract prevent employee from having contact through LinkedIn?

– Courts showing willingness to treat such communications in same way as communications on any other medium

– Difficult to ascertain what degree of communication is required

– “Solicitation” harder to establish than mere “dealing” but what is “dealing” in this context?


Breach of confidentiality– Arguably clear from database who “customers” are. Are

these contacts confidential?– Database Regulations and Intellectual Property rights

References– be careful not to provide negligent references

Practical solutions - policies

Employer must have clear written policies dealing with social media. Such a policy should:– set clear parameters of what is and what is not acceptable

use for Facebook, LinkedIn etc– clearly state that infringement of the policy could result in

disciplinary action– make it clear that employer will monitor usage to ensure

compliance with the policy

Practical solutions - policies

The policy should be tailored to specific needs of the business– May require personal use to be restricted to outside of

normal working hours– May deal with how LinkedIn contacts will be treated after

termination of employmentThe employer should consult with employees as to what should be contained in such a policyPolicy should be kept as simple as possible and must be dynamic

Social Media Marketing 12 October 2011

Simon Stokes Partner

[email protected]

mailto:[email protected]

This presentation

What is social media marketing?Legal risksManaging legal riskQ&A

What is social media marketing?

Brands need to become 'friends' with customers on Twitter and Facebook

The social web offers companies the chance to 'befriend' their potential customers.

(Daily Telegraph 02/10/11)

http://www.youtube.com/


The use of web 2.0 and social networking for marketing purposes– Twitter, Facebook, Flickr– Facebook – aims to be “web within the web” with

embedded apps to access other sites/content– You Tube– blogs/UGC

Use of technology for marketing purposes often with a social media element– i-phone applications– advergames


Example of campaignsDulux “let's colour™” Project (2010-11)Heavy use of video contentBlogs/UGC (eg users upload videos etc)Often advertising-agency led (initially)

Legal risks

Smm is about “brands having conversations” - all conversations have risks– users blog disparaging/defamatory comments (held

to be "published" by the firm?)– unwittingly infringe others' rights by reusing social

media content without permission– data protection, advertising laws and/or Financial

Services Authority (FSA) rules on financial promotions may be broken

– firms may lose control of their web presence through uncontrolled activities by users/tweeters

Managing legal risk (IPR, general)

IPR (if generating new IPR – brands, trademarks, domain names – protect)– Register key brands– Ensure domain names in your name

Contracts (agencies, sm sites)Policies (internal - HR)User terms (blogs, data collection)Advertising and consumer law

Managing legal risk (contracts)

Contract – agency– Campaigns often advertising agency led initially– Get contract reviewed to ensure you protect:

your brand and other IPR (especially domain names, ownership of video content etc)customer data (in line with DPA 1998)ability to take back in-house and transfer fan sites back to you

Managing legal risk (policies)

HR Policies– HR policies need to be reviewed– Address use by staff of smm (not just dealing

with misuse of employer's time – what if employees seek to comment about the business? Or you tell them to?)

– Clarify roles and responsibilities of those permitted to use smm for marketing purposes

Managing legal risk (user terms)

User terms– Privacy policy - ownership and control of user

dataIPRData protection

– Blogs/UGCRights to useLiability as publisher?To moderate/not to moderateNotice and take downBlog terms/acceptable use policy

Managing legal risk (legal compliance)

Consumer law compliance– Consumer Protection from Unfair Trading

Regulations 2008 – general duty not to trade unfairly (from 26 May 2008)

Unfair if a misleading omissionUnfair to use editorial content to promote a product where promotion paid for without making that clearOFT enforcesTake care if you pay a blogger/have employees blog

See OFT enforcement action against Handpicked Media (December 2010)


Advertising law compliance– Self-regulation: Latest UK Code of Non-

Broadcast Advertising, Sales Promotions and Direct Marketing (12th edn) came into force on September 1, 2010. This Code (CAP Code) is enforced by the Advertising Standards Authority (“ASA”)

– CAP Code – general and specific (eg gambling, medicines, tobacco etc)

– legal, decent, honest and truthful– Sanctions: adverse publicity,

denial/withdrawal of media space, OFT intervention


CAP Code extended from 1 March 2011"Advertisements and other marketing

communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities."editorial, public relations eg press releases and investor relations material remain outside the jurisdiction of the ASA.


New sanctions– Providing details of an advertiser and the

non-compliant marketing communication on a special part of the ASA website.

– Removal of paid-for search advertising –ads that link to the page hosting the non-compliant marketing communication may be removed with the agreement of the search engines.

– ASA paid-for search advertisements - the ASA could place advertisements online highlighting an advertiser’s continued non- compliance.


Recent Social Media ASA Adjudication (ASA Adjudication on Cell Drinks 3 August 2011)– Promotion of alcoholic drink “Cell Drink” through

video ads on YouTube and a linked Facebook page

– Sensitive area – alcohol promotion – risk of promoting to under 18s

– Was a breach of the Code for various reasons (eg irresponsible – associated alcohol consumption and daring feats) but also a specific SMM issue – “age gates” on YouTube and Facebook not sufficient here (under 18s might still be able to access them and ads would appeal to under 18s – advertiser couldn’t rely on an age gate here)

Conclusion – Dos and Don'ts

Do– Protect IPR (trade marks, domain names)– Review contracts with agencies and smm

sites– Ensure use of adequate privacy and blog

policies– Institute internal sm HR policies (part of

wider HR policies re social media generally)– Vet copy for legal compliance

Don't– Encourage your employees to blog or promote

products without careful controls

Q&A

Questions?

blake lapthorn social media seminar 12 october 2011

Education