Don’t get it wrong – Social MediaSi M i P t J F P tSimon Morrissey, Partner

Media Brands & TechnologyLewis Silkin LLP

Jo Farmer, PartnerMedia Brands & Technology

Lewis Silkin LLPLewis Silkin LLP

Simon.morrissey@lewissilkin.com

Lewis Silkin LLP

Jo.farmer@lewissilkin.comy@

#LSsocialmedia

@

#LSsocialmedia

What we will discuss today?What we will discuss today?

1. What are the key drivers for the topics we will discuss?

2 Section 1 – General Legal and Commercial Issues2. Section 1 General Legal and Commercial Issues surrounding the use of UGC and platforms

3 S ti 2 M k ti i i l di3. Section 2 – Marketing campaigns on social media

Key DriversKey Drivers

• The use of third party assets:ContentContentPlatforms

• 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 and in marketing specific termse s a d a e g spec c e s

Key Drivers cont’dKey Drivers cont’d

• Gulf Air’s Facebook Page

Using 3rd Party UGCUsing 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?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

Using 3rd Party UGC cont’dUsing 3 Party UGC cont d

• UGC is subject to 2 statutory rights based systems:• 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 dataRight 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> Moral Rights> Database Rights

Using 3rd Party UGC cont’dUsing 3rd Party UGC cont’dTh i ht li bl d d th t f th t t!The rights applicable depend on the nature of the content!

Using 3rd Party UGC cont’dUsing 3rd Party UGC cont d

• Key Point – Consider the application of both rights systems to the type of UGC:

When it all goes wrongWhen it all goes wrong…

Using 3rd Party Social Media PlatformsUsing 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 displayingor through the Services. By submitting, posting or displaying 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 transmitto 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).”

U i 3rd P t S i l M di Pl tfUsing 3rd Party Social 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

i d li ti tti tyour privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free worldwide license to use any IProyalty-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.”

Using 3rd Party Social Media PlatformsUsing 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 worldwide license totransferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content onre 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.”

Using 3rd Party Social Media PlatformsUsing 3 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’sAre you reading or storing information on a user s

device or have retained someone to do this on your behalf?

Topical IssuesTopical Issues

• Data MashingGoogle’s new Privacy Policy – “one policy to rule them all....”

• PinterestVanity URLsVanity URLs

“ No Pin” code offered to third party content owners

Overview of regulationOverview of regulation

• Transparency of marketing

• Brand ambassadors bloggersBrand ambassadors, bloggers

• UGC – when and how is it regulated?

• Competitions and vote rigging

Transparency: the lawTransparency: the law

• #socialmedialaw: If it is a marketing communication, you must be transparent about the fact that it is marketingp g

• The law:Consumer Protection from Unfair Trading RegulationsConsumer Protection from Unfair Trading Regulations 2008 (CPRs)General requirement not to misleadGeneral requirement not to misleadMust disclose commercial intent

t di l if i f dit i l t tmust disclose if you are paying for editorial content or advertorialCan’t pose as a consumerCan t pose as a consumer

Transparency: the lawTransparency: the law

• CPRs:

• CPRs enforced through OFT (and Trading StandardsCPRs enforced through OFT (and Trading Standards and ASA)

P ibilit f i i l ti• Possibility of criminal sanctions

• First ever case in Dec 2010 – Handpicked Media got in trouble for not disclosing paid for promotional content

Groupola com March 2011Groupola.com – March 2011

Groupola comGroupola.com

# i l di l E l f l l i• #socialmedialaw: Employees falsely posing as consumers to send promotional updates about their company = criminal offencecompany = criminal offence

• employee published unidentified positive comments on their F b k i l diFacebook page, including:

“Lets face it…if they offer you the same deal in a few weeks time you will be back to try again regardless ofweeks time, you will be back to try again, regardless of what you think of them now”

“I say fair play! and no - I don't work at Groupola”I say fair play!…and no - I don t work at Groupola

• Undertakings given not to make statements falsely ti th t th i d t irepresenting that author is a consumer and to give

prominent disclosures in future

Transparency: Guidance and self l t dregulatory codes

US FTC id li d t d t ti i l• US FTC guidelines on endorsements and testimonials

• UK is likely to harmonise with the US over time

• #ad; #spon; #paid?

• OFT guidance

• IAB and ISBA Guidelines where payment has been madeIAB and ISBA Guidelines where payment has been made for editorial content to promote brands within social media:

Disclose the fact that payment has been madeDisclose the fact that payment has been madeComply with social media platform t’s and c’sComply with the CAP Code (even where it doesn’tComply with the CAP Code (even where it doesn t cover the activity)

Brand ambassador tweets: how (not) toBrand ambassador tweets: how (not) to disclose?

Snickers: Twitter and TeasersSnickers: Twitter and Teasers

Snickers: Twitter and TeasersSnickers: Twitter and Teasers

• Teaser tweets: Obviously jokes; no brand references or promotional message

• But unlike teaser posters, not obvious that part of a marketing campaignmarketing campaign

• ASA decision: not upheld: because first tweets didn’t include reference to Snickers and because the revealinclude reference to Snickers, and because the reveal tweets came quickly

• Endorsement by the ASA of the use of #spon and other disclosure hashtags

Olympic athletesOlympic athletes

Brand ambassadorsBrand ambassadors

• #socialmedialaw: UK has thrown its weight behind the US in recognising #ad, #spon, #paid for brand

b d iambassador campaigns

• “Gold standard” compliance:pNot 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

BloggersBloggers

• IAB/ISBA guidance:Where marketer pays for content to appear in blog or video blog: must always disclose commercial relationship withinblog: must always disclose commercial relationship within the blogany hyperlink to brand must contain “no follow” attribute toany hyperlink to brand must contain no follow attribute to comply with Google webmaster guidelinesForums: ask for permission from administrator before asking individuals to conduct WOMFacebook: Do not pay individuals to promote brands (even

ith di l ) it b h F b k t f iwith disclosure) as it breaches Facebook terms of service (Ad.ly service was banned in April 2011 for paying celebs to endorse products on Facebook). p )

• Blogger outreach?

Brands’ own social media channelsBrands’ 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 Google + sho ld be ob io s that it isFacebook, Pinterest, Google + : should be obvious that it is the brand’s pageTherefore it should satisfy requirements of transparencyTherefore, it should satisfy requirements of transparency

User generated content (UGC)User generated content (UGC)

ASA has jurisdiction over:ASA has jurisdiction over:

• claims made on own website

• in other non-paid-for space online under brands controlUGC if adopted & incorporated into marketing;and Social Media e.g. Facebook and Twitter

• What is a “marketing communication”?What is a 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 UGCto ensure it complies with ASA Code, if they republish/highlight/optimise the UGC on social media platform

Product description? Availability?

Price?

Free delivery? Does price match illustration?

T ti i l Withi R itTestimonials – Within Remit

Customer Reviews: Not caught (?)Customer Reviews: Not caught (?)

What about foreign websites?What about foreign websites?

• Current rule re marcomms in Foreign Media

• “Advertisements in paid-for space that are published on p p pnon-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 operatescountry 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 it does not, the ASA will take what action it can. Most members of the EU, and many non-European countries, have a self-regulatory organisation that is a member of the g y gEuropean Advertising Standards Alliance (EASA). EASAco-ordinates the cross-border complaints system for its members (which include the ASA) ”members (which include the ASA).

How are ASA decisions enforced?How are ASA decisions enforced?

Existing ASA sanctions:

Ad bli it i dj di ti• Adverse publicity via adjudications

• Ad Alerts

• Withdrawal of trading privileges

• Pre-publication vetting

• Legal Backstop: Referral to the Office of Fair TradingLegal Backstop: Referral to the Office of Fair Trading

Specific sanctions for digital communicationsSpecific sanctions for digital communications

New sanctions:

D t il f ff di d / d ti t d t h il• Details of offending ads/advertisers posted to a heavily 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 gcommunication (not an initial sanction – only after warnings)

CompetitionsCompetitionsInternet is not a jurisdiction! Global competitions are a• 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 dateEntry mechanic, judging criteriaFULL DETAILS of prize and any restrictions must be clear

• #socialmedialaw competitions: marketers should consider how to deal with online popularity vote and p p yvote rigging risk at outset.

Mercedes Benz Vito Van PromotionMercedes Benz – Vito Van Promotion

Competition platform specific issuesCompetition – platform specific issues

• Facebook Promotion guidelinesTerms must release Facebook from liability and make it clear that the promotion is in no way endorsed by FacebookCan’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

Concluding thoughtsConcluding 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 f l d ’t i h ti l id• The letter of law doesn’t give much practical guidance as to how to comply; self regulatory codes, guidance from trade bodies have important role to playtrade bodies have important role to play

• #socialmedialaw: Marketers are unlikely to achieve 100% li 100% f th ti b t d t d t100% compliance 100% of the time, but need to adopt best practices to avoid legal pitfalls

Thank you y

Any questions ?