T FASHION LAW
Social media - the sweet spot to selling onlineByNigel Miller
he huge growth in popularity of social media has created new opportunities to engage with customers, develop sales and add value to brands. However, it has also created new challenges and legal liabilities. What are the legal risks? And what are the best practices to manage these risks and avoid brand damage?
Banana skins Social networks are unforgiving. What can seem like a good marketing idea at the time can backfire and rapidly inflict serious brand damage as the blogosphere seizes on the slightest social media faux-pas. The source may be an ill-judged message or campaign, or an unthinking employee. Kenneth Cole famously learned this lesson after the company tweeted “Millions are in uproar in #Cairo. Rumor is they heard our new spring collection is now available online at http:…”.
Brand impersonation It is not difficult to set up a Twitter or Facebook account that impersonates a brand; and consumers can be easily misled. This might be done by jokers, scammers or counterfeiters. The negative impact on a brand can grow exponentially if false offers, scams, malicious information, spoofs or jokes get shared on social media networks. Brand owners need to monitor this but also pick their battles carefully. In some cases action is needed, but in other cases wading in with defensive or threatening comments may do more harm than good.
Account spoofing Keep your account details secure. Tom Watson, the Labour MP, had his private Twitter account hijacked by a female intern who, while he was in a meeting, tweeted to his 65,000 followers “I should log out of my twitter so that my intern doesn't twit-rape me ...”. Afraid that the intern would be fired, the hashag #savetheintern then trended high.
Legal compliance Unfair Trading Regulations prohibit using media to promote a product where the trader has paid for the promotion without making that clear. In addition, the Regulations prohibit traders posting content which falsely creates the impression that the trader is a customer. In 2011, the Advertising Standards Authority’s powers were extended to
cover online advertising, including use of social media. The ASA have already upheld a number of complaints concerning misuse of social media. A recurring issue is complaints that tweets breach the requirement that
“marketing communications must be obviously identifiable as such”; for example, the ASA ruled that a Twitter campaign for Nike featuring Wayne Rooney and Jack Wilshere breached the CAP Code because it was not sufficiently recognisable as advertising. Nike had the dubious privilege of being the first organisation to have its Twitter campaign banned by the ASA.
Offences Under the Communications Act it is an offence to send a communication (e.g. a tweet) that is grossly offensive or indecent, obscene or of a menacing character. A tweet can land you in prison.
Employee issues Some recruiters use LinkedIn to qualify candidates and Facebook to disqualify them. Meanwhile, there are issues under employment and data protection laws in using information on social networks to carry out background checks, as the candidates may not be aware that this is happening and such information may be unreliable and discriminatory.
28 • FOOTWEAR TODAY • NOVEMBER/DECEMBER 2012
Social media policy How should businesses manage the risks of social media? A good starting point is to identify the specific risks for your business and then formulate a social media policy. You then need to provide training to those of your staff who are engaged in social media to ensure that they understand the risks and how to protect the business’s brands and intellectual property. While many companies have policies for the use of communications and IT, these do not address the special issues involved with social media. A social media policy could cover the following:
• Ensure that your brands and usernames are protected on the main social media platforms by setting up “official” sites. Use verified accounts where available (e.g. the blue verified badge on Twitter).
• Set up terms of use on your own sites where user-generated content can be posted to outlaw inappropriate content, and reserve the right to take- down content which is offensive or damaging.
• Allocate responsibility and implement procedures to monitor social networks for anything adverse to your brands, including reputational damage, infringers of intellectual property, impersonators or others intent on causing brand damage. Have a policy and process to decide what if any action is to be taken.
• Prohibit employees sharing confidential corporate information or posting offensive or denigrating comments about the company, its products or staff. And use disciplinary action to enforce breaches of the policy.
• When something goes wrong, deal with it promptly, openly, honestly and sensitively.
• Explore whether cyber-liability insurance is available at commercial rates.
ox Williams LLP and can be contacted at
nmiller@foxwilliams.com twitter @nigelmiller
Nigel Miller is a commerce & technology partner at law firm F
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