YOUR BEST PRACTICE GUIDE TO SOCIAL MEDIA AND THE LAW

Risky Business:

social media consultancy

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

CONTENTSINTRODUCTION: 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

business communications.

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

Certification Program.

The recently published social media and the law benchmark report

reveals that two-thirds of companies are not

very aware of the ‘Terms of Use’ on social

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 PRACTICES

INTRODUCTION

have basic, beginner or no personal knowledge

of social media law

68% over

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

4.27

3.98

3.67

3.27

3.59

3.12

3.52

2.80

SERIOUS LEGAL RISK

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

Respondents: 1834

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

Protection Act?

• 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.

LEGAL EAGLESPART 1

THE LAW OF CONFIDENCEEnglish 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

costly mistake.

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.

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5

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

in 2014.

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 Commission’s Vice-President.

"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."

Source: Europa

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.”

DINO WILKINSON 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 media campaign.

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Don’t keep personal data culled from social media networks for longer than you need to, as this is a basic principle of the Data Protection Act 1998.

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3 out of 5 companies are not confident that sensitive or confidential information is protected on social media platforms

6

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?’

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ALL RIGHTS RESERVED?PART 2

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 respondents from UK companies that are very aware of consumer protection rights in social media

4.2

8

‘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.’

http://www.facebook.com/legal/terms

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).’

https://twitter.com/tos 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.’

http://about.pinterest.com/terms/

Pinterest 2013 All rights reserved

TERMS OF SERVICE:

9

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.”

JULIAN RANGER Chairman, Social Safe

“

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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.”

DINO WILKINSON, Partner, Norton Rose (Middle East) LLP

THINK BEFORE YOU CLICKThe 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

simple rules:

• 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

copyright infringement.

• 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 intellectual property rights of user generated content

46%

11

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 business.

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

LinkedIn account.

WHO OWNS THE CONTENT ONSOCIAL 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.”

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YOUR LEGISLATION CHECKLISTCOPYRIGHT, DESIGNS AND 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

company?

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.

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of social media professionals are not very aware of social platform ‘terms of use’

66%

12

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

and marketers.

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

for libel.

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

involved harassment’.

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

social media.

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

read it.”

“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

its ambit.”

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

RETWEET RECOURSEPART 3

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 statement.

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.

Source: SeqLegall

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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

ownership.

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.

CHECKLIST1. Why is a tweet being sent? It is

important to ensure that content is

always in support of well-defined

campaign guidelines.

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

could result.

5. Re-tweeting content should be

considered and materials checked for

their legality.

6. Does your company’s security policy

include Twitter and how this should

be used?

LEGISLATION

Defamation Act 1996

Protection from Harassment Act 1997

Consumer Protection from Unfair Trading Regulations 2008

The Business Protection from Misleading Marketing Regulations 2008

The Fraud Act 2006

Copyright, Designs and Patents Act 1988

The Trade Marks Act 1994

14

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.

NO PURCHASE NECESSARY

PART 4

It is vitally important that marketers are fully aware of the laws and regulations that impact on promotions.

£0.00

are aware of competition, sweepstake and gaming laws

consider competitions, endorsements and promotions to be a social media legal risk

HALF 26% yet only

OF RESPONDENTS

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

TIP

Track all re-tweets of competitions as these can often be made without the important link to your terms and conditions.

TIP

15

The CAP Code says:

User-generated content (UGC) is content created

by private individuals. In establishing whether UGC

should be regarded as a marketing communication, and

consequently fall within the remit of advertising self-

regulation, the primary and preliminary areas of enquiry to

be considered are:

• Did the website owner originally solicit the

submission of UGC from private individuals, then

adopt and incorporate it within their own marketing

communications?

• Did a private individual provide the website owner, on

an unsolicited basis, with material which the website

owner subsequently adopted and incorporated within

their own marketing communications?

If the answer to either question is yes, (and of course

that the content of the material and the form in which

it is re-used by the marketer does itself constitute an

advertisement or marketing communication by the

marketer) then prima facie the UGC under consideration

will be regarded as a marketing communication.”

© CAP 2012

The potential issue faced by brands is how they manage social media and user generated content. The new guidelines imply that everything shown on a brand’s website, including consumer reviews fall under the remit of the ASA.

“This means that all content including user generated content and reviews must be ‘legal, decent, honest and true’. Therefore brands must ensure that they have a process in place to make certain that when it comes to reviews and social media content they are actively preventing fake reviews or comments, not censoring or cherry picking what they display and ensuring that all reviews or comments shown are by verified product owners.

“This will require a new focus on moderation for social commerce and ensuring that social media content is verified and not fake. There are still e-commerce sites with a manual, ’DIY’ approach to reviews, and there are also platforms that are non-compliant, which could catch some retailers out.”

RICHARD ANSON Founder, Reevoo

Source: Econsultancy

“

are very aware of the Cap Code and ASA regulations on advertising and promotion

6% only

16

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

the law.

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

as advertising.

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 CONTENTTO PROMOTE BRANDS

LEGISLATION AFFECTING ADVERTISING & PROMOTIONS FROM CAP

MORE INFO

When using social media networks like Twitter for promotions, clearly indicate that the tweets are for promotional purposes.

TIP

#ad

17

PINTEREST PROMOTIONS & MARKETINGIt 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

and conditions.

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.

FAVOURITE SHOP

Show us your board on

& FAVOURITE SHOPShow us your board

CASE FILETGI 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.

CHECKLIST1. 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.pinterest.com/logos-and-marketing-guidelines/#ads

18

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

gone live.

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

voting mechanism.

Source: Facebook Guidelines

CASE FILEA 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

and conditions.

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

administered fairly.

The competition breached CAP

Code (Edition 12) rules 8.2 (Sales

promotions) and 8.14 (Administration).

Source: ASA

FACEBOOK PROMOTIONS TERMS & CONDITIONS

19

Respondents: 183

Respondents: 183

PE

RC

EN

TAG

E %

0 20

4

0 6

0 8

0 10

0

HAVE A PLAN TO AVOID VOTE RIGGING?

36.1%

ENSURE ENDORSEMENTS AND SPONSORSHIP USE HASHTAGS #AD #PAID #SPON?

29.2%

USE T&CS WHERE NECESSARY?

97.2%

HAVE A PROCESS FOR MANAGING DATA / CONTACTS ACQUIRED DURING A COMPETITION?

68.1%

IF YOU MANAGE PROMOTIONS, COMPETITIONS AND ENDORSEMENTS IN SOCIAL MEDIA, DO YOU...

are knowledgeable about data protection and privacy laws

51%

57%

of companies consider using data gathered from social networks to

be a social media legal risk

andShhh...

20

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.

MIXING STAFF AND SOCIAL

PART 5

48%

21%

1%1% 1%

10% 19%

LinkedIn is the most widely used network for social recruiting, followed by Twitter and then Facebook.

THE RIGHT TO PRIVACY?

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.

21

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 dismissal?

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

law specialist.

Can you outline a recent case where social media was used as

evidence in an employment tribunal for unfair dismissal?

In the widely reported case of Smith v

Trafford Housing Trust [2012] 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

employees’ actions.

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

Tribunals.

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

Q&A INTERVIEWwith Melissa Powys-Rodrigues, Associate Solicitor, Colman Coyle Solicitors

22

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.

LEGISLATION

Human Rights Act 1998

Regulation of Investigatory Powers Act 1998

Data Protection Act 1988

23

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

Relations’ stating:

“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.

CHECKLISTEMPLOYER PROTECTION• 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

media sites.

• 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

employment contract.

• 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

22%

THE VIEW

24

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 policy include?

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

is identified.

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 POLICYDon’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.

TIP

To lift your social media policy off the page

Include case studies and possible scenarios to relate your policy to the everyday

TIP

And remember:

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.

25

Clients

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

consultancies.

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

and training.

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?

Let’s discuss

Give Katy a call on 0845 408 2031 or email info@immediatefuture.co.uk

IMMEDIATE FUTURE

26

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