Archive for the Social Media Policy Category

Your Legal Questions Answered:Copyright, Defamation and CAP Code

Posted in social media, Social Media Policy, Uncategorized with tags , , , , on November 29, 2010 by wisdomlondon

Forewarned is forearmed!

It’s becoming increasingly clear that organisations who engage in social media activity MUST have not only a strategy, but policy and guidelines in place, to limit the grey area when it comes to accountability and to enable employees to actively and effectively engage (whether on behalf of the organisation or otherwise) within the context of clear parameters and recognised standards. Inevitably, legal implications must be considered.

I’m delighted to introduce Ashley Hurst, Associate at Olswang LLP, to answer some of your questions on social media use and legal implications:

@jeffpullinger asked:  Can you save other peoples public tweets to a database on your own server with out permission?

Ashley Hurst: The starting point here is that the copyright in a tweet is retained by the author or, if published by an employee in the course of his/her employment, by the employer. Whilst Twitter ensures in its terms and conditions that it is granted a very wide licence to use tweets for its own purposes, that licence does not extent to use of the tweets by other Twitter users. The question is then what the user does with the tweet. For example, if used purely for the purposes of criticism or review, for private study, or for educational purposes, this will not be an infringement of copyright. However, commercial use of tweets without consent, for example for promotional purposes, may be an infringement. The practical reality is that many Twitter users will be only too happy to have their tweets retweeted and so the risk of being sued for copyright infringement will often be very low, although the safe bet is to obtain consent from the relevant Twitter user.

amoyal asked: Can I be liable for erroneous Tweets? (factually incorrect)

Ashley Hurst: There is no legal liability for innocently making false statements which are not defamatory. However, if the false statement is also defamatory of a person or company (i.e. it lowers their reputation in the eyes of the ordinary reader), the tweeter could be liable for defamation. See for example the recent case of Cairns v Modi, where the former international cricketer Chris Cairns is suing Lalit Modi for a defamatory tweet which allegedly accused Cairns of match-fixing (see my post on Reputation Online ). If the false statement is made intentionally or without any regard for the truth or falsity of it, the maker of the statement may also be liable for malicious falsehood, which is similar to defamation except that there is no need to show that the statement is defamatory. This cause of action is often used where malicious false statements are made about products.

@charliesaidthat said: I would love to know more about the ASA/CAP March 2011 regs implications for employees that blog.

Ashley Hurst: The big change with the new CAP code provisions (which take effect from 1 March 2011) is that they will apply to “non-paid for” advertising and marketing communications. The CAP Code already covers online advertising and marketing by email, texts, pop-ups and banner ads, and viral campaigns.  However, it will now cover advertising and marketing on company websites and through social media such as on Twitter and Facebook where the purpose of the communication is to sell something.

This means that all official tweets and other forms of non-paid for online advertising and marketing will need to be checked carefully for accuracy.  In particular, from 1 March 2011, marketing communications on company websites or through social media must not: (1) falsely claim or imply that the marketer is a consumer; (2) make claims about products and services which cannot be objectively substantiated; (3) mislead consumers by exaggerating the benefits or qualities of products or services; (4) make misleading statements about price, for example by omitting delivery charges; (5) mislead as to the availability of products or services; (6) make inaccurate or misleading comparisons with other products or services; (7) cause harm and offence; or (8) fail to provide key information of origin when selling over the internet (e.g. the address of the seller).

One of the difficulties for PRs will be in determining when PR campaigns may be construed as advertising or marketing campaigns. Whereas as this is usually an easy distinction to make for traditional forms of advertising and marketing, it may be more difficult where, for example, the company’s Twitter feed is used to promote a new product. See the ASA’s website for more details and the proposed amendments to the Code.

@charliesaidthat also said:  I would also ask about UGC and the implications/risks of moderating content (I assume this makes you a publisher and liable?)

Ashley Hurst: A company which hosts third party material on its website (for example, a discussion forum) will be potentially liable as a publisher of that material, including for defamation and infringement of copyright. However, the hosting company will normally have a defence where it did not previously know about the unlawful material and acted quickly to remove it once on notice of it. This is known as “innocent dissemination” and is what gives rise to the dilemma that if companies moderate (whether before or after publication), they improve the content of the website but risk losing this defence. Companies therefore need to conduct a risk assessment as to the benefits of moderating. It is often more important for companies to maintain the integrity of their websites and control the content of their forums than to entirely remove the risk of liability for third-party content. Moderation, together with an effective complaints and take-down procedure, can often be enough to remove most of the risk of being sued.

More questions?  Let us know!

Want to know more about developing social media strategy, corporate policy and usage guidelines?  Get in touch with kate@wisdomlondon.com or call on 07540 970 225 for a chat and initial advice.

With huge thanks to Ashley Hurst and Olswang LLP.

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Reaction to @baskers: A Clear Call To Action For Social Media Policy

Posted in social media, Social Media Policy with tags , on November 15, 2010 by wisdomlondon

This weekend has seen a furore develop in the mainstream press over the blog and Twitter account run by Department of Transport civil servant Sarah Baskerville, or @baskers, as we now know her.

The likelihood is that the extensive and in many cases inflammatory media coverage will make many businesses uncomfortable about social media in general, and once again raise the question of where the line is to be drawn when it comes to employee tweeting.

I have my own opinions about the whole saga but what I’m more interested in here is what businesses can take away from this – because I think this represents an important call to action to get social media policy right.

Optix Solutions’ 2010 Social Media Survey found that less than 30% of respondent companies had a company social media policy in place. Yet one of the key barriers for business (especially in more conservative, and especially regulated, B2B environments) when it comes to embracing social media is a sense of fear-driven paralysis.  Not least because we realise that you cannot control what an employee has to say.

So, in light of this story in particular, my, message to business is this:

First of all, this is not new. Facebook has provided a similar platform for years now – Twitter simply allows greater amplification – but does not guarantee it. Before that it was IM, email and the good old water cooler where people chatted about work and vented their frustrations.  They still do.  Calm down. Technology is not the problem.

Second, you can’t control what an employee has to say online or offline, but you can hypothesise, mitigate and set parameters and guidelines in line with what you genuinely need to protect or manage. You can draw the line, but you need to be realistic about where.

I’m not going to go into the how and why of social media policy here  (post forthcoming) but I’d like to outline a few thought processes to which businesses should devote some time in the first instance:

Know the terrain

Do you even know how many of your employees are using social media? Which platforms? When? Are they using them for purely personal networking, or is there a professional bent to what they are doing online (for example, are they tweeting relevant content, talking to others in similar or related industries, taking part in forum debates)?

You need to understand this first and foremost. But tread carefully – an open and honest dialogue with a pre-stated objective will be more fruitful than sudden or defensive questioning.

Know the dangers

What are the dangers of your employees tweeting about work? Do you trust your workforce to maintain professionalism on an open and fairly personal platform? Are they incentivised or encouraged to do that? What might happen? Can you hypothesise about any potential flashpoints and consider what the ultimate effects may be? It’s worth considering those scenarios on a scale of 1 to 10, so that you know where to focus your efforts when it comes to encouraging responsible use of social media.

Know your bottom line

In any business, certain topics will be off limits for the outside world – whether it’s clients, methodologies, projects, internal news. You need to know what your bottom line is when it comes to acceptable and unacceptable – and be able to demonstrate and articulate a solid business reason for that.  Some content might be sub-optimal – no-one can mitigate for every single scenario – but know what to sweat and what not to sweat. You have to cede control to some degree.

Know the best-case scenario

Again, here’s where hypothesis comes into play very userfully. If it’s a given – as it probably is – that some of your workforce are using social media platforms outside of official corporate accounts, think about what the best-case scenario here could be. If your employees where actively encouraged and empowered to use Twitter, for example, to engage with the outside world in their professional capacity, what might the upside be? A broader view of your industry, new contacts, a heightened online profile for your organisation and increased awareness are just a few of the benefits, and are easily realised.  Not only that, but empowerment through demonstrating trust is powerful when it comes to team motivation and engagement.

This is worth some thought. After all, if knowledge is power, applied knowledge is power with added understanding, foresight and direction. Once you’ve considered these questions, you’re already a good way towards being able to develop a solid social media policy which does away with some of the ambiguity the Department for Transport have been faced with – and I’d urge you to give that some serious consideration, if you haven’t already.

Kate Spiers is director of Wisdom London, providing brilliant integrated communications to businesses.  If you’d like to talk to us about how to go about developing your social media policy, get in touch here.