This presentation is from Lewis Silkin’s Don't get it wrong #socialmedia semina on the 17th April 2012. Simon Morrissey and Jo Farmer, Partners in the Media, Brands and Technology department look at social media and the legal and regulatory aspects of its use in advertising. You can view the youtube playlist of the videos that accompany this presentation here: http://youtu.be/4edioYoxClM; or on our website here: http://www.lewissilkin.com/Knowledge/2012/April/Dont-get-it-wrong-socialmedia.aspx

1. Don’t get it wrong – Social Media
Simon M i
Si Morrissey, P t
Partner Jo F
J Farmer, Partner
P t
Media Brands & Technology Media Brands & Technology
Lewis Silkin LLP Lewis Silkin LLP
Simon.morrissey@lewissilkin.com
y@ Jo.farmer@lewissilkin.com
@
#LSsocialmedia #LSsocialmedia

2. What we will discuss today?
1. What are the key drivers for the topics we will discuss?
2.
2 Section 1 – General Legal and Commercial Issues
surrounding the use of UGC and platforms
3. Section
3 S ti 2 – M k ti campaigns on social media
Marketing i i l di

3. Key Drivers
• The use of third party assets:
Content
Platforms
• Brands and their agencies ceding control over the use of
platforms and content to third parties
• Social media is a heavily regulated media – both in general
terms a d in marketing spec c terms
e s and a e g specific e s

4. Key Drivers cont’d
• Gulf Air’s Facebook Page

5. Using 3rd Party UGC
• Just because user generated content (“UGC”) is published
online does not mean it is freely available for other uses!
• Can I own the rights in UGC?
> Do contributors have the rights to transfer?
> Barriers to ownership?
• Can I use the rights in UGC without restriction?
> Rights and regulations
• Key Point - Ownership of UGC in itself does not mean the
owner can do what he/she wants with that UGC

6. Using 3rd Party UGC cont’d
cont d
• UGC is subject to 2 statutory rights based systems:
Data Protection rights – rights exercised by the data subject
> To withdraw consent
> Right of subject access
> Right of correction/erasure of inaccurate data
> Right to prevent distress
> Right to compensation
Intellectual Property rights – rights exercised by the owner
> Trademarks
> Copyrights
> Design Rights
> Moral Rights
> Database Rights

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

8. Using 3rd Party UGC cont’d
cont d
• Key Point – Consider the application of both rights
systems to the type of UGC:

9. When it all goes wrong
wrong…

10. Using 3rd Party Social Media Platforms
• Twitter Terms of Use:
“You retain your rights to any Content you submit, post or display on
or through the Services. By submitting posting or displaying
Services submitting,
Content on or through the Services, you grant us a worldwide,
non-exclusive, royalty-free licence (with the right to sublicense)
to use, copy reproduce process, adapt modify, publish , transmit
use copy, reproduce, process adapt, modify transmit,
display and distribute such Content in any and all media or
distribution methods (now known or later developed).”

11. U i 3rd P t Social M di Pl tf
Using Party S i l Media Platforms
• Facebook Terms of Use:
“For content that is covered by intellectual property
rights, like photos and videos (IP content), you
specifically give us the following permission, subject to
your privacy and application settings: you grant us a
i d li ti tti t
non-exclusive, transferable, sub-licensable,
royalty-free,
royalty-free worldwide license to use any IP
content that you post on or in connection with
Facebook (IP License). This IP License ends when
( )
you delete your IP content or your account unless
your content has been shared with others, and they
have not deleted it.”

12. Using 3rd Party Social Media Platforms
• Pinterest Terms of Use:
“Subject to any applicable account settings you select,
you grant us a non-exclusive, royalty-free,
transferable, sublicensable,
transferable sublicensable worldwide license to
use, display, reproduce, re-pin, modify (e.g., re-format),
re arrange,
re-arrange, and distribute your User Content on
Pinterest for the purposes of operating and
providing the Service(s) to you and to our other
Users.”

13. Using 3rd Party Social Media Platforms
• Linking to 3rd Party platforms:
The application of Third Party Terms and Notices
Cookie compliance:
p
> Are you a web publisher?
> Are you reading or storing information on a user’s
user s
device or have retained someone to do this on your
behalf?

14. Topical Issues
• Data Mashing
Google’s new Privacy Policy – “one policy to rule them
all....”
• Pinterest
Vanity URLs
“ No Pin” code offered to third party content owners

15. Overview of regulation
• Transparency of marketing
• Brand ambassadors, bloggers
ambassadors
• UGC – when and how is it regulated?
• Competitions and vote rigging

16. Transparency: the law
• #socialmedialaw: If it is a marketing communication, you
must be transparent about the fact that it is marketing
p g
• The law:
Consumer Protection from Unfair Trading Regulations
2008 (CPRs)
General requirement not to mislead
Must disclose commercial intent
must disclose if you are paying f editorial content or
t di l i for dit i l t t
advertorial
Can t
Can’t pose as a consumer

17. Transparency: the law
• CPRs:
• CPRs enforced through OFT (and Trading Standards
and ASA)
• Possibility of criminal sanctions
P ibilit f i i l ti
• First ever case in Dec 2010 – Handpicked Media got in
trouble for not disclosing paid for promotional content

18. Groupola.com
Groupola com – March 2011

19. Groupola.com
Groupola com
• #
#socialmedialaw: E l
i l di l Employees falsely posing as
f l l i
consumers to send promotional updates about their
company = criminal offence
• employee published unidentified positive comments on their
Facebook page, i l di
F b k including:
“Lets face it…if they offer you the same deal in a few
weeks time, you will be back to try again regardless of
time again,
what you think of them now”
“I say fair play!…and no - I don t work at Groupola”
I play! and don't Groupola
• Undertakings given not to make statements falsely
representing th t author is a consumer and t give
ti that th i d to i
prominent disclosures in future

20. Transparency: Guidance and self
regulatory codes
l t d
• US FTC guidelines on endorsements and t ti
id li d t d testimonials
i l
• UK is likely to harmonise with the US over time
• #ad; #spon; #paid?
• OFT guidance
• IAB and ISBA Guidelines where payment has been made
for editorial content to promote brands within social media:
Disclose the fact that payment has been made
Comply with social media platform t’s and c’s
Comply with the CAP Code (even where it doesn’t
doesn t
cover the activity)

21. Brand ambassador tweets: how (not) to
disclose?

22. Snickers: Twitter and Teasers

24. Snickers: Twitter and Teasers
• Teaser tweets: Obviously jokes; no brand references or
promotional message
• But unlike teaser posters, not obvious that part of a
marketing campaign
• ASA decision: not upheld: because first tweets didn’t
include reference to Snickers and because the reveal
Snickers,
tweets came quickly
• Endorsement by the ASA of the use of #spon and other
disclosure hashtags

25. Olympic athletes

26. Brand ambassadors
• #socialmedialaw: UK has thrown its weight behind the
US in recognising #ad, #spon, #paid for brand
ambassador campaigns
b d i
p
• “Gold standard” compliance:
Not good enough to put disclosure of paid relationship
in profile on Twitter, Facebook, Pinterest, Google +
Disclosure must be in body of each and every
marketing communication

27. Bloggers
• IAB/ISBA guidance:
Where marketer pays for content to appear in blog or video
blog: must always disclose commercial relationship within
the blog
any hyperlink to brand must contain “no follow attribute to
no follow”
comply with Google webmaster guidelines
Forums: ask for permission from administrator before asking
individuals to conduct WOM
Facebook: Do not pay individuals to promote brands (even
with di l
ith disclosure) as it b
) breaches F
h Facebook t
b k terms of service
f i
(Ad.ly service was banned in April 2011 for paying celebs to
endorse products on Facebook).
p )
• Blogger outreach?

28. Brands’ own social media channels
• Transparency is easy to achieve on brands own social
media channels/platforms:
Twitter user name: should make it obvious it is from the
brand (eg @lewissilkin)
Facebook, Pinterest,
Facebook Pinterest Google + : should be obvious that it is
sho ld ob io s
the brand’s page
Therefore,
Therefore it should satisfy requirements of transparency

29. User generated content (UGC)
ASA has jurisdiction over:
• claims made on own website
• in other non-paid-for space online under brands control
UGC if adopted & incorporated into marketing;
and Social Media e.g. Facebook and Twitter
• What is a “marketing communication”?
marketing communication ?
A communication that primarily sets out to sell something –
intended to distinguish editorial content on a website
• #socialmedialaw: marketers may need to check any UGC
to ensure it complies with ASA Code, if they
republish/highlight/optimise the UGC on social media
platform

30. Availability?
Product description?
Price?
Free delivery? Does price match illustration?

31. Testimonials – Withi Remit
T ti i l Within R it

32. Customer Reviews: Not caught (?)

33. What about foreign websites?
• Current rule re marcomms in Foreign Media
• “Advertisements in paid-for space that are p
p p published on
non-UK-registered websites, if targeted at UK consumers,
are subject to the jurisdiction of the relevant authority in the
country from which they originate if that authority operates
a suitable cross-border complaint system.”
• “If it does not the ASA will take what action it can Most
If not, can.
members of the EU, and many non-European countries,
have a self-regulatory organisation that is a member of the
g y g
European Advertising Standards Alliance (EASA). EASA
co-ordinates the cross-border complaints system for its
members (which include the ASA) ”
ASA).

34. How are ASA decisions enforced?
Existing ASA sanctions:
• Ad
Adverse publicity via adjudications
bli it i dj di ti
• Ad Alerts
• Withdrawal of trading privileges
• Pre-publication vetting
• Legal Backstop: Referral to the Office of Fair Trading

35. Specific sanctions for digital communications
New sanctions:
• Details f ff di
D t il of offending ads/advertisers posted t a h
d / d ti t d to heavily
il
publicised ASA micro site
• Sponsored links to offending specific page removed, with
the cooperation of the relevant search engines
• Placing paid-for ads on search engines to highlight
continued non-compliance of an advertiser’s marketing
p g
communication (not an initial sanction – only after
warnings)

36. Competitions
• Internet is not a jurisdiction! Global competitions are a
logistical nightmare to run for legal reasons.
• Always have clear terms and conditions and include link to
t’s and c’s in promotional messages. T’s and cs:
Closing date
Entry mechanic, judging criteria
FULL DETAILS of prize and any restrictions must be
clear
• #socialmedialaw competitions: marketers should
consider how to deal with online popularity vote and
p p y
vote rigging risk at outset.

37. Mercedes Benz – Vito Van Promotion

38. Competition – platform specific issues
• Facebook Promotion guidelines
Terms must release Facebook from liability and make it clear
that the promotion is in no way endorsed by Facebook
Can’t use “like” button as a voting mechanism,
Can’t use other Facebook functionality for entry into
competition or for communications about competition
• Pinterest –competitions (or any commercial activity) are not
permitted without obtaining Pinterest’s prior consent
• Google + no competitions can be run on Google +; can only link
to other sites hosting the competition
• Twitter – okay to run competitions according to their terms

39. Concluding thoughts
• Legal regulation doesn’t distinguish between acquisition
campaigns or engagement strategies
• UK is a long way behind US in regulatory terms
• Th l tt of l
The letter f law d
doesn’t give much practical guidance as
’t i h ti l id
to how to comply; self regulatory codes, guidance from
trade bodies have important role to play
• #socialmedialaw: Marketers are unlikely to achieve
100% compliance 100% of th ti
li f the time, b t need t adopt
but d to d t
best practices to avoid legal pitfalls

40. Thank you
y
Any questions ?