Don't make a # of it: Social media and marketing
Facebook has more than one thousand million active users (one billion if you go with the U.S. definition). Millions more turn to Twitter for news and content. In that context, there should be no need to emphasise the importance of social media as a channel for marketing and communications.
Businesses across the board - not just consumer brands - have recognised the value of social media as a tool for engaging with their customers, clients and contacts. But there are pitfalls for the unwary and many businesses have ended up learning hard and very public lessons.
Only last month a television exposé highlighted celebrities tweeting promotional messages in return for freebies, without being transparent, along with the problem of businesses using fake fans to artificially increase numbers of Facebook 'likes' or Twitter followers.
The normal legal concerns apply
Social media is clearly not a 'Wild West' in which marketers can operate without legal and regulatory oversight. The same legal concerns arise as with traditional media marketing; defamation, infringement, misleading marketing etc.
The UK's advertising standards codes - the foundation of the self-regulatory system - were extended to cover brands' social media pages as long ago as March 2011.
Make it clear that advertising is advertising
There are a few legal and code requirements in the UK which are especially relevant to social media. For example, the restriction on mixing editorial content with advertising without making it clear that content has been paid for.
'Advertorials' are usually headed 'ADVERTISEMENT FEATURE' (or similar) in print but the situation is often murkier online. Positive write-ups from bloggers may well be incentivised with free products, priority access or some other benefit.
In 2010, the UK Office of Fair Trading (OFT) took enforcement action against the agency Handpicked Media. Handpicked was required to give undertakings that its network of bloggers would prominently disclose "in a manner unavoidable to the average consumer" that their blog content had been paid for.
The UK Advertising Standards Authority (ASA) has ruled against a series of celebrity tweets from Wayne Rooney, Keith Chegwin and others, because they did not make it clear that the celebrity concerned had been paid for an endorsement.
While it will not always be necessary to use #ad or #spon to identify a tweet as advertising - on 3 September the ASA declined to uphold a complaint against a Wayne Rooney tweet, as it was clear it was advertising even without the use of those hashtags - it is still safest to do so.
Be transparent about who you are and ensure your employees do the same
Unfair trading regulations prevent businesses from creating the impression that they are not acting for purposes related to their business. They may not pose as consumers.
These rules can easily be breached. Online, employees may be tempted to promote or defend their employer, without disclosing the employment relationship. Marketers and agencies may be tempted to use personal accounts to 'seed' a campaign or spread a brand's message.
This kind of activity will often be very difficult for the regulators to spot. But the OFT did enforce these rules against the company Groupola, as part of a wider investigation, when a Groupola employee defended a misleading promotional offer with the comment:
"'... Lets face it...if they offer you the same deal in a few weeks 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" (Unfortunately, he did...)
There can also be PR damage - users are adept at exposing suspicious commenting patterns.
Be careful about using materials you find online
Non-lawyers often assume that images or content found online can be freely re-used. But those materials will be protected by copyright. Businesses need to be sure that they have the appropriate permissions, whether from the rights-owner or through the platform terms (e.g. Twitter allows retweeting without fear of infringing the original tweet).
Idle gossip, costs lives...
... or at least could expose a business to defamation claims etc.
Many brands are looking to make their social media pages a destination for, for example, fashion or sports content. They may be commenting on news, events and gossip. But, in moving into editorial content, they may not have taken the same precautions as a traditional newspaper or magazine business.
Even a simple retweet or 'nod' to a topic trending on Twitter can lead to liability - as Sally Bercow will have realised to her cost, following the libel action launched by Lord McAlpine in the UK. Because of their deeper pockets, businesses form a more attractive target for litigation than individual social media users.
Abide by the platform's terms
In practice, the power of the platform owner to damage a business's social media ambitions is likely to be far greater than the power of many advertising regulators.
Use the right tone of voice
Maintaining the right tone of voice across thousands of public, daily interactions is difficult, especially as more and more senior executives are expected to be active on social media. Getting it wrong has led to a number of PR disasters for brands.
The language of the pub or the playground might help engage a particular demographic, but how will it look if highlighted out of context by a newspaper or Mumsnet?
Moderate user-generated content (but not too much...)
E-commerce regulations provide a degree of protection from liability for businesses that are 'mere hosts' of user-generated content (UGC). However, these protections are unlikely to assist brands operating Facebook pages.
A brand on Facebook will be soliciting and engaging with UGC, not merely hosting it. So, if that UGC infringes a third party's rights or is defamatory, then the brand could be liable for publishing it.
In addition, the UK ASA recently found against an alcoholic drinks brand on the basis that all images uploaded by users to the brand's Facebook page formed part of the brand's advertising. The brand should have ensured that those images complied with the Committee of Advertising Practice (CAP)'s advertising codes.
So, there is likely to be a need to moderate user-generated content. But it would be wise to ensure that moderation is in line with a well-publicised set of 'house rules'.
Moderators should not be too quick to remove negative comment which is not legally problematic, even if it's embarrassing to the brand. Social media users are very quick to make a PR issue out of over-enthusiastic 'message control'.
UGC is less of a concern for businesses on Twitter (where users post tweets on their individual feeds, rather than to a space controlled by the business). However, there is a need for caution before hitting the retweet button and re-publishing what may be problematic UGC.
Be careful what you ask for
Social media users regularly subvert brand promotions. You run a competition asking users to submit advertising for your cars, you get added environmental sloganeering. You ask for your next catalogue model, users vote for the person you would never choose. You ask for stories about your brand - users reject the positive messages you were hoping for and settle for lampooning you or highlighting your past failures.
On Twitter, the responses will be outside of your control; elsewhere you may cause a stir if you seek to moderate. The lesson is to build in sufficient time for a review by all relevant stakeholders, including PR teams, before finalising the design for the promotion.
Pre-moderation of entries or a panel of judges, rather than a public vote, may also help to manage the risk.
Be joined up as a business
Social media is changing the face of customer service. It has never been easier for customers to object, in a highly public fashion, to any perceived failure on the part of a business. But dealing with those customers professionally and effectively on social media can ultimately enhance a brand.
Customer services need to be joined up with a business's social media presence, particularly where that business is consumer-facing. Similarly, any PR issue faced by a business is likely to manifest itself in social media and so social media may well need to be a key part of the response.
When a restaurant chain was faced with two employees boasting about adulterating takeaway meals on YouTube, it earned plaudits for its use of Twitter and YouTube to address customer concern.
But other brands have looked odd, at best, by continuing to tweet gossip, while staying silent on PR issues besetting the brand. Others have made a bad situation worse with ill-timed promotions requesting user feedback.
Businesses need to be aware that they cannot put social media in a box and parcel it out to an agency to manage without input from the rest of the business. A more holistic approach is needed.
Control your brand ambassadors
If a business has an endorsement relationship with a celebrity, then it must make sure the celebrity makes it clear that any promotional tweets or posts are advertising (e.g. through use of the #ad or #spon hashtags on Twitter).
When individual users are asked to share or distribute messages, it will need to be similarly clear that those messages are advertising. The new CAP guidance on peer-to-peer marketing by children may apply.
Keep it secure!
Businesses such as Burger King have been subject to very high-profile hacks of their Twitter accounts. Others have left their social media presence in the hands of an unreliable or disgruntled employee.
A social media presence is a public face of a business and security should be a priority. There is no excuse for not taking sensible precautions.
This means using the most secure passwords and taking care over who has access to them, using management tools to ensure that employee access can easily be revoked and above all paying close attention to what is being published.
Don't pay for fake fans
It should go without saying, but don't be tempted to engage 'click farms' to boost your numbers with fake Facebook 'likes' or Twitter followers.
You are rendering the data meaningless and, while it may not be a priority concern for regulators, there are plenty of people who are more than capable of exposing brands who have thousands of followers in Asia or South America and yet do little business in those regions.
Ultimately, it is not the overall number of 'likes' or followers that is important, but the number of people who are actively engaging with your content.
Have policies in place to cover clearance, crisis management etc.
Businesses need to plan for and factor compliance into their social media marketing activity. Normal clearance processes may need to be adapted.
An in-house legal team is unlikely to have the resources (or the will) to review every tweet or status update, but a clear policy should be in place setting out when and how materials will be cleared.
Employees should also be educated and trained on what they can and cannot say on social media. It should be clear that disciplinary action could result from a failure to follow such guidance. For more on disciplining employees for social media misuse, please look out for our upcoming AAA.
Agencies will want to factor in (and insist on) appropriate client input. Blame, and even contractual liability, may attach to an agency in the event of a social media issue, but the agency will always be dependent on the client for guidance on the business context and on PR issues which may be coming down the tracks.
Even with the most thorough planning, experience suggests that things can and do still go wrong. Businesses should have a well thought out crisis management policy in place, just in case.
For updates on advertising and marketing law, including social media, follow Dan on Twitter @AdLawUK
This action may contain information of general interest about current legal issues, but does not give legal advice.