CaptureThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award winning guide to the law and business of social media, we take a look at courts’ efforts to evaluate emoticons and emojis entered into evidence; we describe the novel way one court addressed whether counsel may conduct Internet research on jurors; we examine a recent decision finding that an employee handbook provision requiring employees to maintain a positive work environment violates the National Labor Relations Act; we discuss an FTC settlement highlighting legal risks in using social media “influencers” to promote products and services; we explore the threat ad blockers pose to the online publishing industry; we review a decision holding that counsel may face discipline for accessing opposing parties’ private social media accounts; we discuss a federal court opinion holding that the online posting of copyrighted material alone is insufficient to support personal jurisdiction under New York’s long-arm statute; and we summarize regulatory guidance applicable to social media competitions in the UK.

All this—plus an infographic illustrating the growing popularity of emoticons and emojis.

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Lots of press surrounding Microsoft’s purchase of LinkedIn: Will LinkedIn change as a result? Will the Microsoft purchase inspire a Twitter acquisition?

“Spam King” gets 30 months in jail for sending 27 million messages.

One columnist says you should stop measuring your social media marketing reach.

Twitter is now allowing brands to target ads to people based on their use of sentiment, food and passion emojis.

Entertainment streaming companies are tapping social media to learn what resonates with viewers.

Brands can now create their own ads on YouTube on the cheap using a smartphone.

Here’s an infographic illustrating how lawyers are using social media to market themselves.

Some insight into why influencer marketing works and best practices for teaming up with influencers online.

This article describes what kinds of brands are joining Snapchat, and what types of content they’re posting to the platform.

Snapchat aims to become a huge player in digital ads. Here’s how.

As Socially Aware readers know, social media is transforming the way companies interact with consumers—indeed, some pundits have referred to social media as the greatest development for marketers since the printing press. But, of course, the new business opportunities created by social media also create new legal risks for companies. Learn how to make the most of these new business opportunities while minimizing associated legal risks at Socially Aware’s and Practising Law Institute’s upcoming Social Media conference in San Francisco on Tuesday, February 9th.  The conference will be chaired by Socially Aware editor John Delaney, and will be webcasted for our readers who are located outside of the Bay Area.

This year’s program features speakers from Facebook, Pinterest and Snapchat, as well as counsel at other prominent companies and law firms immersed in the emerging social media-related trends and best practices. Further, representatives from leading social media regulators, including the Federal Trade Commission and the California State Attorney General’s Office, will share their insights on how companies leveraging social media can stay on the right side of the law.

If you’re looking for a conference tackling today’s most challenging social media-related legal issues, this is it!  For more information or to register, please visit PLI’s website here.

10-14-2015 3-48-13 PMThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we highlight five key social media law issues to address with your corporate clients; we discuss when social media posts are discoverable in litigation; we identify six important considerations in drafting legal terms for mobile apps; we take a look at the clash between bankruptcy law and privacy law in RadioShack’s Chapter 11 proceedings; we examine a recent federal district court decision finding “browsewrap” terms of use to be of benefit to a website operator even if not a binding contract; we outline best practices for employers’ use of social media to screen and interact with employees and conduct workplace investigations; we explore a Washington state court’s refusal to unmask an anonymous online reviewer; and we discuss Facebook’s recent update of its “Notes” feature.

All this—plus an infographic illustrating the growing popularity of video on social media.

Read our newsletter.

 

JD_iStock_000019152244_LargeVloggers have become the reality stars of our times. For an increasing number of social media users, what was once a hobby is now a lucrative career. You may be surprised to learn that Felix Kjellberg (aka “PewDiePie”), a 25-year-old Swedish comedian and the world’s most popular YouTube star, is reported to have earned $8.5 million in 2014.

The UK has its own vlogger superstars in the form of Zoella and Alfie Deyes. Together, this power couple of social media has amassed 12 million YouTube subscribers, 6.8 million Instagram followers and almost 6 million Twitter followers. Zoe Suggs (aka “Zoella”), 25, started vlogging in 2009 and has since become a brand in fashion and beauty marketing, publishing a novel and creating a line of products. Alfie, 21, started his Pointless vlog when he was 15 and has since published a series of books. It was even announced earlier this year that tourists will soon be able to see waxworks of Zoella and Alfie at London’s Madame Tussauds. But Zoella and Alfie are not alone; there is now a whole generation of vloggers rivalling film and sports stars in the popularity ranks. Indeed, we now even have a host of social media talent agencies formed to help propel vloggers to superstardom.

Vloggers are particularly popular with young people who enjoy the more intimate connection they can have with these approachable idols. Therefore, brands who want to target a young demographic are increasingly keen to work with vloggers. This collaboration typically involves brands paying vloggers to feature in “advertorial vlogs,” i.e., videos created in the usual style of the vlogger, but with the content controlled by the brand.

Now, of course, there is nothing inherently wrong with there being a commercial relationship between a brand and a vlogger from a legal perspective. However, particularly where you have the influence of celebrity, plus an impressionable audience, vloggers and brands need to be very careful that they don’t fall foul of consumer protection rules that are in place to protect consumers from unfair advertising practices. In August 2015, the UK advertising regulator issued new guidance to help vloggers and brands be responsible and stay on the right side of the law. In this blog post, we will identify the key issues raised by the guidance. We will also provide an overview of some of the other key legal issues that brands need to be aware of when using social media for marketing and advertising in the UK.

Vlogs

The Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”) prohibit certain unfair commercial practices. These include using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear (advertorial).

The Committee of Advertising Practice Code (the “CAP Code”) acts as the rule book for non-broadcast advertisements in the UK and requires that advertising must be legal, decent, honest and truthful. The CAP Code was extended to cover social media in 2011. The Cap Code is enforced by the Advertising Standards Authority (“ASA”), the UK regulator responsible for advertising content in the UK. The ASA has the power to remove or have amended any ads that breach the CAP Code.

Rule 2.1 of the CAP Code states that marketing communications must be obviously identifiable as such. Rule 2.4 states that marketers and publishers must make clear that advertorials are marketing communications, e.g., by labelling them “advertisement feature.” These rules apply to marketing communications on vlogs in the same way as they would to marketing communications that appear on blogs or other online sites. But as the CAP Executive noted last year, a number of marketers have “fallen foul of the ASA by blurring the line, intentionally or not, between independent editorial content written about a product and advertising copy.”

In November 2014, the ASA’s ruling against Mondelez provided a clear example of a brand failing to comply with the CAP Code. Mondelez had engaged five celebrity vloggers to promote its Oreo cookies by participating in a race to lick cream off a cookie as quickly as possible. The channels featuring the vlogs typically contained non-promotional content, and the vlogs failed to clearly indicate the commercial relationship between Mondelez and the vloggers. The reference to “Thanks to Oreo for making this video possible” might indicate that Oreo had been involved in the process, but it did not make clear that the advertiser had paid for and had editorial control over the videos. As a result, the advertorials were banned.

In another high-profile case, in May 2015, a YouTube video providing makeup tutorials featuring the popular vlogger Ruth Crilly, who has 300,000 subscribers on YouTube, was banned by the ASA for failing to clearly identify itself as marketing material. The video appeared on the “Beauty Recommended” YouTube channel, which is operated by Procter & Gamble, with the intention of marketing its Max Factor range of products. The ASA stated that the channel page provided “no indication” that it was a Max Factor marketing tool, and emphasized that “it wasn’t clear until a viewer had selected and opened the video that text, embedded in the video, referred to Procter & Gamble….We consider that viewers should have been aware of the commercial nature of the content prior to engagement.”

Guidance

In August 2015, the CAP Code Executive published guidance to help vloggers and brands better understand their obligations under the advertising rules. While the guidance is not binding, it’s a helpful statement of the rules as they apply to vlogs.

Advertorial. Where a brand collaborates with a vlogger on a video that is produced by the brand and published on the brand’s website or social media page, this is very likely to be a marketing communication—but it wouldn’t be an advertorial. However, where a vlog is made in the usual style of the vlogger, but the content of the vlog is controlled by the brand and the vlogger has been paid (not necessarily with money) for the vlog, this would be an advertorial. Because the extent of the brand involvement may not be obvious to the viewer, this needs to be made explicit upfront so that viewers are aware that the video is an ad before engaging. Labels such as “ad,” “ad feature,” “advertorial,” or similar are likely to be acceptable, whereas labels such as “sponsored by,” “supported by” and “thanks to X for making this possible” should be avoided, as these would not make it sufficiently clear that the brand had control over the content of the vlog. Viewers should be aware that they are selecting an ad to view before they watch it so that they can make an informed choice. Finding out that something is an ad after having selected it, at the end of a video or halfway through, is not sufficient.

Commercial breaks/product placement. In terms of commercial breaks or product placement within a vlog, it needs to be clear when the ad or product placement starts. This could be via onscreen text, a sign, logo or the vlogger explaining that they have been paid to talk about a particular item by the brand.

Vlogger-promotion. If the sole content of a vlog is a promotion of the vlogger’s own merchandise, this would not be considered an advertorial. Rather, it would be a marketing communication. The video title should make clear that the video is promoting the vlogger’s products, but it’s unlikely that the vlog itself will need labelling as an ad if it’s clear from the context that it’s a marketing communication.

Sponsorship. Where a brand has sponsored a vlog, but the brand has no control over the vlog, this would not be considered an ad and would not be caught by the CAP Code. However, to ensure compliance with the CPRs, the vlogger should give a nod to the sponsor in order to disclose the nature of the commercial relationship.

Free Items. Vloggers may be sent free items by a brand. Where there is no condition attached to the item by the brand and the vlogger can choose whether or not to cover the item in a vlog, this would not be an ad caught by the CAP Code. In addition, where the brand provides the vlogger with free products on the condition that they are reviewed independent of any brand input, then, as the brand retains no control over the vlog, the video would not have to be labelled as an advertorial. However, in such circumstances, the vlogger should disclose to consumers that the vlogger has an incentive to talk about the product, along with the nature of the incentive, to ensure compliance with the CPRs.

Other Social Media Marketing

Vlogging isn’t the only aspect of social media marketing that creates compliance challenges, of course. There are other issues that brands need to be aware of when advertising and marketing using social media in the UK. We have outlined some of these below. For issues specific to the UK financial services sector, please see our previous blog post: UK’s Financial Services Regulator: No Hashtags in Financial Promotions.

Native Advertising (written advertorial). A native ad is advertising that resembles editorial content. Native ads are a popular form of content marketing, but again raise concerns that consumers may not be aware that the content is advertising in breach of the CPRs and Cap Code. Guidance issued in February 2015 by IAB (the UK trade association for digital advertising) advised advertisers to provide consumers with prominently visible visual cues to enable them to understand, immediately, that they are engaging with marketing content that has been compiled by a third party in a native ad format and is not editorially independent. The guidance suggests clear brand logos and the use of different design formatting for native ads. It also advises the publisher or provider of the native ad format to use a reasonably visible label that makes clear that a commercial arrangement is in place.

Employee Endorsements. Companies are keen to encourage their employees to use social media and become advocates for the company. However, companies must be careful; if an employee chooses to discuss his or her employer’s brand favorably on social media, then this is likely to be construed as an advert under the CAP Code, even where the employee is acting independently and not at the request of his or her employer. An employee endorsement that is not transparent also runs the risk of breaching the CPRs. Therefore, employees must make clear that they are affiliated with their employer when making any company endorsements on social media. Organizations should also provide employees with clear social media policies and training to avoid any incident of inadvertent advertising.

Ads via Twitter and Celebrity Endorsements. As mentioned above, the CPRs and CAP Code require users to be aware that they are viewing an advert. In terms of Twitter, this means that promotional tweets should be accompanied by the hashtag #spon or #ad. This is particularly the case where the advert may not be immediately apparent as a promotional tweet, e.g., where it is in the form of a celebrity endorsement. As with promotions using vloggers, companies are increasingly keen to use celebrities in connection with promotions in order to increase their brand awareness within that celebrity’s group of followers.

In March 2012, an advertising campaign by Mars involved reality star Katie Price tweeting about the Eurozone crisis, and soccer player Rio Ferdinand engaging his followers in a debate about knitting. The campaign involved four teaser tweets by each celebrity to focus attention on their Twitter profile (but with no marketing content), culminating with a final tweet that was an image of the celebrity with a Snickers chocolate bar and the line “you’re not you when you’re hungry @snickersUK #hungry#spon.” While the final tweet was clearly labelled as an advert, the ASA ruled that the first four tweets only became marketing communications at the point the fifth and final tweet was sent (as the first four tweets contained no marketing references). As a result, the ASA ruled that the campaign did not breach advertising standards as the fifth tweet (and as such, the entire campaign) was clearly identifiable as an advert.

However, Nike was less successful in June 2012. Soccer players Wayne Rooney and Jack Wilshere tweeted “My resolution – to start the year as a champion, and to finish it as a champion… #makeitcount.gonike.me/makeitcount.” While the ASA agreed that the tweets were obviously marketing communications, the reference to the Nike brand was not sufficiently prominent. The tweets also lacked #spon or #ad to signify advertising. As it was not sufficiently clear to all readers that the tweets were part of a marketing campaign, the advertisement was banned.

User-Generated Content. Companies also need to be wary when using user-generated content when promoting their brand. For example, companies may be deemed to be advertising if they: (i) provide a link to a user blog that includes positive comments, (ii) re-tweet positive tweets from users, or (iii) allow users to post comments on the company website. To ensure that such content is responsible, accurate and not misleading, harmful or offensive, companies should monitor user-generated content to ensure that the content is appropriate for the likely audience and preserve documentary evidence to substantiate any claims.

Advergames. Advergames are online video games that are created in order to promote a brand, product or organization by immersing a marketing message within the game. In May 2012, the ASA published guidance that made clear that advergames will be considered advertising and are subject to the CAP Code. For further discussion on advergames, please see our previous blog post: What Are the Rules of the Advergame in the UK?

Conclusion

The key message for organizations who want to use social media in their marketing campaigns is to treat consumers fairly and to be upfront and transparent. But good practice isn’t just about legal compliance, it will also help maintain consumers’ respect for and trust in your brand. If your social media campaign hits the headlines, you want it to be for all of the right reasons.

 

Federal Trade Commission Doorway Sign

In December 2014, we noted that the Federal Trade Commission’s (FTC) settlement with advertising firm Deutsch LA, Inc. was a clear signal to companies that advertise through social media that they need to comply with the disclosure requirements of Section 5 of the FTC Act. On September 2, 2015, the FTC announced a settlement along the same lines with Machinima, Inc., a company promoting the Xbox One system. This new action indicates that the FTC is serious about enforcing compliance in this space, so companies need to make sure that their advertising and marketing partners understand their obligations under Section 5.

A Quick Refresher on Online Advertising Disclosure Requirements

As we explained in our previous alert, the FTC’s Endorsement Guides describe how advertisers using endorsements can avoid liability under Section 5 for unfair or deceptive acts or practices. Simply put, a customer endorsement must be from an actual, bona fide user of the product or service and, if there is any material connection between the endorser and the advertiser that consumers would not reasonably expect but that would affect the weight given to the endorsement—such as payment or an employment relationship—then that connection must be clearly and conspicuously disclosed.

According to the complaint in In re Machinima, Machinima paid video bloggers (“influencers”) to promote Microsoft’s Xbox One system by producing and uploading to YouTube videos of themselves playing Xbox One games. Machinima did not require any disclosure of the compensation the influencers received, and many videos lacked any such disclosure. The FTC alleged that the payments would not be reasonably expected by YouTube viewers, such that the failure to disclose them was deceptive in violation of Section 5. In light of the Deutsch LA case, which dealt with endorsements on Twitter that did not include proper disclosures, In re Machinima seems uncontroversial. But what makes the case interesting is how close Microsoft came to being swept up in it.

Microsoft Escapes Liability, Narrowly

The FTC also issued a closing letter reflecting that it had investigated Microsoft, and Microsoft’s advertising agency Starcom, in relation to influencers’ videos. (Starcom managed the relationship with Machinima.) Even though the FTC did not ultimately take action against Microsoft (or Starcom), the closing letter is significant because it makes clear the FTC’s position that a company whose products are promoted bears responsibility for the actions of its ad agencies—as well as the actions of those engaged by its ad agencies.

According to the closing letter, Microsoft avoided an enforcement action because it had a “robust” compliance program in place that included specific guidance relating to the FTC’s Endorsement Guides and because Microsoft made training relating to the Endorsement Guides available to employees, vendors and personnel at Starcom. Furthermore, Microsoft and Starcom adopted additional safeguards regarding sponsored endorsements and took swift action to require Machinima to insert disclosures into the offending videos.

Given the increased reliance of advertisers on social media campaigns, the Machinima case provides both a clear warning and clear guidance to companies on how to minimize the risk of a Section 5 enforcement action. Not only must notice be provided of any paid endorsements, regardless of the medium in which they appear, but advertisers should also seriously consider having in place specific policies and procedures to address the FTC’s Endorsement Guides—as well as to ensure that their ad agencies and other involved parties comply with them.

Social_Community85The explosive growth of social media has clients facing legal questions that didn’t even exist a few short years ago. Helping your clients navigate this muddled legal landscape will have them clicking “like” in no time.

What’s in a Like?

Not long ago, the word “like” was primarily a verb (and an interjection used by “valley girls”). You could have likes and dislikes in the sense of preferences, but you couldn’t give someone a like, claim to own a like or assert legal rights in likes. Today, however, a company’s social media pages and profiles, and the associated likes, followers and connections, are often considered valuable business assets. Courts have come to various conclusions regarding whether likes and similar social media constructs constitute property, but one thing is clear: Every company that uses social media should have in place clear policies regarding employee social media use and ownership of business-related social media accounts.

Employees who manage a company’s social media accounts often insert themselves as the “voice” of the brand and establish a rapport with the company’s fans and followers. Without clear policies that address ownership of social media accounts, and clearly distinguish between the company’s accounts and employees’ personal accounts, your client may find itself in a dispute when these employees leave the company and try to take the company’s fans and followers with them.

Read a more detailed description of “likes” as assets here.

Dirty Laundry

It comes as no surprise that employees frequently use social media to complain about managers and coworkers, pay, work conditions and other aspects of their employment. Companies often would prefer not to air these issues publicly, so they establish policies and impose discipline when employees’ social media activity becomes problematic. Companies need to be careful, however, that their policies and disciplinary actions comply with applicable law.

A number of National Labor Relations Board decisions have examined whether employees’ statements on social media constitute “concerted activity”—activity by two or more employees that provides mutual aid or protection regarding terms or conditions of employment—for purposes of the National Labor Relations Act (which, notably, applies regardless of whether the employees are unionized or not). Companies also need to be careful to comply with state statutes limiting employer access to employees’ personal social media accounts, such as California Labor Code Section 980, which prohibits an employer from asking an employee or applicant to disclose personal social media usernames or passwords, access personal social media in the presence of the employer, or divulge personal social media.

Read more about the intersection of social media policies and labor law here and here.

Terms of (Ab)use

Companies often consider their social media pages and profiles to be even more important than are the companies’ own websites for marketing and maintaining customer engagement. But a company’s own website has one advantage over a third party social media platform: The company sets its own terms for use of its website, while the third party social media platform is subject to terms of use imposed by the platform operator. And, in many cases, the terms imposed on users of social media platforms are onerous and make little distinction between individual users using the platform just for recreation and corporate users who depend on the platform for their businesses.

Social media terms of use often grant platform operators broad licenses to content posted on the platform, impose one-sided indemnification obligations on users, and permit platform operators to terminate users’ access with or without cause. You may have little luck negotiating modifications to such online contracts for your clients, but you can at least inform your clients of the terms that govern their use of social media, so that they can weigh the costs and benefits.

Read more about social media platforms’ terms of use here, here, and here.

Same as It Ever Was

When it comes to using social media for advertising, the media may be new but the rules are the same as ever. Companies that advertise through social media—especially by leveraging user endorsements—need to comply with Section 5 of the FTC Act, which bars “unfair or deceptive acts or practices.” Bloggers and others who endorse products must actually use the product and must disclose any “material connections” they have with the product providers (for example, a tech blogger reviewing a mobile phone that she received for free from the manufacturer should disclose that fact). Because this information is likely to affect consumers’ assessment of an endorsement, failure to disclose may be deemed deceptive. So if you have a client that uses endorsements to promote its products, make sure to brush up on the FTC “Dot Com Disclosures” and other relevant FTC guidance.

Read more about endorsement disclosure obligations here.

Good Rep

As noted, a company’s social media pages, followers, etc., may constitute valuable business assets. But buyers in M&A transactions often neglect such assets when formulating the seller’s reps and warranties. Buyers should consider asking the seller to disclose all social media accounts that the target company uses and to represent and warrant that none of the target’s social media account names infringe any third party trademark or other IP rights, that all use of the accounts complies with applicable terms of service, and that the target has implemented policies providing that the company (and not any employee) owns all business-related social media accounts and imposing appropriate guidelines regarding employee use of social media.

Finally, if you have clients that use social media, it’s important to be familiar with the popular social media platforms and their (ever-changing) rules and features. Learning to spot these issues isn’t going to turn you into the next Shakira—as of this writing, the most liked person on Facebook with well over 100 million likes—but your clients will surely appreciate your help as they traverse the social media maze.

Read more about social media assets in M&A transactions here.

This piece originally appeared in The Recorder.

As more users spend more time on their mobile devices, advertising dollars are following. And the compliance regime that governs interest-based advertising (IBA) (formerly referred to as online behavioral advertising or OBA) is expanding as well. (IBA is the collection of information about users’ online activities across different websites or mobile applications, over time, for the purpose of delivering online advertising to those users based on those activities.) The regime arose from a February 2009 Federal Trade Commission (FTC) report entitled Self-Regulatory Principles for Online Behavioral Advertising, which the Digital Advertising Alliance (DAA), a consortium of media and marketing associations, translated into a self-regulatory program (DAA Principles) in an effort to avoid legislation.

The DAA Principles focus on providing consumers with notice of and control over how information collected from their use of online services is used for IBA purposes. To facilitate such notice and choice, the DAA provides an advertising option icon to be placed in or near an interest-based ad. The icon, when clicked, delivers consumers to a landing page that describes the data collection practices associated with the ad and provides an opt-out mechanism. The Council of Better Business Bureaus, which, along with the Direct Marketing Association, enforces the DAA Principles, has construed the principles to also require notice on any site where information is collected for IBA purposes. Such notice typically takes the form of an “Our Ads” or similarly named link in the site footer, separate from the privacy policy link, that clicks through to the same landing page as the advertising option icon, or to similar notice and choice. A dedicated industry website, www.aboutads.info, also provides consumers with the ability to exercise choice with regard to IBA.

The DAA has always held that the DAA Principles apply universally; in July 2013, it issued guidance regarding their application to the mobile environment (Mobile Guidance). The DAA has also acknowledged the challenge that screen-size, among other things, may pose to complying with the principles’ notice and choice requirements in the same fashion as in the desktop experience. In February 2015, however, the DAA announced two new measures to facilitate compliance with the requirements on mobile devices: (1) a new consumer choice page optimized for mobile (which is otherwise the same as www.aboutads.info), and (2) a downloadable app, “AppChoices,” that enables consumers to manage ad preferences for certain third party in-app ad delivery services. The Mobile Guidance explains how a company engaged in IBA should provide notice and choice—via the consumer web page and/or AppChoices app, as applicable—to its users. The DAA recently announced that the DAA Principles will be enforced in the mobile space, effective September 1, 2015. This enforcement will include not only the notice-and-choice regime but also other mobile-specific issues addressed by the DAA’s Mobile Guidance, such as the use of precise geolocation. As a result, companies should work diligently to figure out their compliance strategies for their mobile websites and applications.

Chevy Kelly, a partner in the UK-based Social Media Leadership Forum, recently sat down with Socially Aware’s own Sue McLean, a Social Media Leadership Forum member, to discuss the legal implications of UK companies’ use of social media as part of their marketing strategies.

Chevy Kelly: In your opinion, what are the top three legal risks that organizations in the United Kingdom face when engaging in social media?

Sue McLean: Compliance with relevant advertising and marketing rules is a key priority. All relevant rules, whether it’s the CAP Code, unfair trading regulations, FCA promotions rules, are concerned with organizations treating the customer fairly and being transparent. Companies will be experienced with applicable rules in terms of traditional media but, of course, social media brings its own challenges, including space/character limitations and the immediacy element of social media bypassing the time for review and approval protocols built into “old media” usage.

Data protection is also a key challenge. Whether you’re collecting personal information from customers via your social media channels, mining data from social media platforms or carrying out Big Data analytics, you need to ensure that you comply with relevant privacy laws. If you’re a global business, unfortunately that means a myriad of different laws. It’s not just a question of compliance. Showing that you take customers’ data seriously will help build trust; it may even help give you a competitive advantage.

Lastly, companies need to continue to focus on social media policies and the education and training of employees. Given the rate of change, companies really need to regularly review their policies and practices. New platforms can trigger new issues, as we have seen with instant messaging, as well as visual, anonymous, self-deleting platforms. Get social media right and employees can be fantastic brand ambassadors; but get it wrong and their activity could result in damage to your reputation and potentially legal or regulatory action.

CK: Are UK lawmakers able to keep up with the rate of change and disruption in the digital era and how are they coping to legislate for every scenario?

SM: No. Given the rate of technological change we have seen over the past decade and are continuing to see (whether it’s social media, Big Data, the Internet of Things, drones, etc.), the law is always playing catch-up; it’s virtually impossible for the lawmakers to keep up.

Also, it often takes so long to bring in a new law, that by the time it’s adopted it may be out of date. By way of example, the long-awaited Data Protection Regulation was proposed back in 2012 to reflect technological changes, including social media—but is still being debated in Europe and, even if it is finalized this year, there will be a transition period of two years before the law applies.

But it’s not always a case of bringing in new laws. Often it’s about interpreting how existing laws can apply to new platforms. That’s certainly the approach the FCA has taken (at least up until now) with respect of the use of social media by financial organizations, the approach that their rules are media neutral and apply to social media in the same way as they apply to traditional media. It’s also the approach the government has taken to trolling and other malicious behavior via social media—that the framework of laws we have are fit for purpose in this digital age (even if they were designed in a world before social media, e.g., to apply to poison-pen letters).

And, of course, while laws are inherently national, social media is a global phenomenon. Unless laws are very closely harmonized (which they are not), social media users face uncertainty because of different approaches to law and regulation in the key countries.

CK: Would you say that large organizations are taking the legal risks surrounding social media as seriously as other traditional communications channels?

SM: I’m not sure it’s a case of not taking the legal risks of social media seriously. I think it’s more a case of organizations being less experienced with social media generally, and that includes legal and compliance departments. If social media is being run out of a marketing/communications team then they will be very experienced with the legal risks of traditional media. But social media triggers new, different types of risk and both the marketing/ communications team and the legal and compliance teams are trying to figure out how to handle those risks.

And, of course, not all social media platforms are the same, and we are getting new platforms all the time. Companies may have become just about comfortable with Facebook and Twitter, but now they have to deal with, say, Pinterest, Instagram, Snapchat. And that’s just in the West; if you are a global organization, it’s likely that you have to deal with a variety of platforms across the different regions.

Of course, it’s not just a question of using social media to promote your business and interact with customers. If you’ve implemented an enterprise social media platform for your employees, that throws up a whole host of other issues.

CK: If you were to reference an example to give a wake-up call to an organization that may be laid-back in their attitude to social media governance, what would it be?

SM: There are a lot of examples I can point to where companies’ social media activity has ended up making headlines for all the wrong reasons. For example, the HMV case where the company didn’t take sufficient control of its Twitter account and employees managed to send a series of angry tweets before the company took control. In fact, I expect that a lot of companies still don’t put enough focus on social media in the context of insolvency and crisis management. It’s not just a question of implementing proper social media governance to avoid legal sanctions. In many cases, it’s equally important to avoid the risk of damage to the company’s reputation.

CK: Have you found that having an in-depth understanding of the law actually makes organizations more risk averse, or are they more averse when they don’t know the boundaries?

SM: A number of companies have taken limited steps into social media because they think that they should be on it, but haven’t fully engaged because of a lack of understanding of social media and a fear of the potential legal risks. But legal risks must be weighed up against the damage that may be caused to the business of not properly engaging. If you appreciate what the risks are, you can weigh up those risks against the business benefit, and also the damage that may be caused to your business of not engaging. Whereas, if you don’t understand the nature or level of the risks, you could be almost paralyzed into inaction. In most cases, the legal risks are not insurmountable. Companies need to exercise the same common sense, judgment and risk-balancing that they use with other media.

 

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One of the fascinating things about social media is that, from a marketing standpoint, each social media platform offers its own unique set of features and opportunities; as a result, a marketing strategy that proves successful on one platform is likely to be a flop when applied to another platform. Each platform requires a marketing strategy tailored to the particular strengths of that platform.

(By the way, the same is true with respect to legal risks associated with social media platforms – each platform presents unique risk issues – but that’s a topic for another blog post.)

So this brings us to Snapchat, a red-hot, innovative social media platform that seeks to join Facebook, LinkedIn and Twitter as one of the giants in the industry. With 100 million monthly active users, a valuation that could rise as high as $19 billion, and a user base that primarily consists of 13-to-25-year-olds, the “disappearing messaging” platform Snapchat is on the radar of nearly every B2C company anxious to grow its brand on social media.

But, for most businesses, advertising on Snapchat is likely to be cost-prohibitive; the company is reportedly charging $750,000-a-day for regular ads that appear in everyone’s feeds.

According to marketing experts, however, businesses can nevertheless capitalize on Snapchat’s reach by launching promotions that capitalize on the sense of urgency that the platform’s disappearing messages create. That is, by embracing a strategy that takes into account the unique features of the Snapchat platform.

Case in point: AdAge suggests that retailers offer potential consumers in-store only coupons with a surprise offer that they’ll learn the value of – 10% off or 30% off, for example – only upon reaching the check-out counter (the Snapchat user wouldn’t be able to open the snap containing the coupon before reaching the register because the coupon would disappear before he could redeem it).

Other ways for companies to leverage Snapchat’s unique characteristics can be found in this Marketing Land article.

When it comes to social media marketing, one size does not fit all.