Stephenson Law Social Media Guide

An alternative law firmLEGAL GUIDE TO SOCIAL MEDIA MARKETING



2CONTENTSABOUT US 3INTRODUCTION 4BUSINESS PRACTICE: COMPLIANCE 5CONSEQUENCES OF NON-COMPLIANCE 9SHARING THIRD PARTY CONTENT 11AFFILIATE MARKETING AND SOCIAL INFLUENCERS 13COMPETITIONS AND PRIZE DRAWS 15GLOSSARY 17 stephensonlaw.co.uk

3ABOUT USStephenson Law is a specialist, Stephenson Law can help youindependent law firm focusing on understand complex legislativecommercial, corporate and technology provisions and provide clear andlaw. We provide expert advice and straightforward legal advice so thatguidance for businesses on issues you can concentrate on runningconcerning social media, information your business.technology, data protection andintellectual property.stephensonlaw.co.uk

4INTRODUCTIONSocial media has grown immensely in The aim of this guide is to providethe last decade, fuelled by a combination you with a comprehensive but easy toof greater internet access, smart digest overview of the law surroundingphone devices and advert-funded what you need to consider when usingbusiness models. Social media is social media within your businessdifferent from traditional forms of practice. It is designed to provide youmedia and social interaction in several with a good understanding of the legalimportant ways, for example, users issues, so you can make sound andcan instantaneously tweet, post or informed decisions regarding yoursend text, images and videos from social media activity.almost anywhere in the world,providing an instant global audience. Whilst this guide is no substitute for legal advice, it is intended to provideSocial media is becoming an important you with a good starting point forcorporate tool for businesses and your business.many organisations are utilising itto inform, educate and influence thewider public. These developmentsraise important legal questions andit is vital that businesses abide by thedos and don’ts of social media use toeliminate any chance of falling foulof the law. stephensonlaw.co.uk

5BUSINESS PRACTICE:COMPLIANCECompliance with the law is the starting Compliance is imperative for yourpoint for all businesses. This guide business to legally engage withfocuses on the best practice the general public on social mediarequirements that exist alongside platforms. As will be discussed furtherthe law when you are using social in this guide, non-compliance can havemedia to represent yourself and a detrimental effect on your business’your business. integrity and status.This section will outline the key Understanding and applying thelegislation, industry codes, regulatory guidance within this section will helporganisations and legal considerations your business to use social mediathat should be taken into account when effectively to promote products,conducting any form of marketing or services and connect with othercommunications on social media. organisations and consumers, whilst safeguarding against financial and reputational damage.stephensonlaw.co.uk

6KEY LEGISLATION INDUSTRY CODESThere is a wealth of legislation and • Copyright, Designs and Patentsbest practice requirements which Act 1998you need to be aware of, all ofwhich are geared towards protecting • Trade Marks Act 1994your audience from inappropriateadvertisements. Social media marketing is subject to code requirements under theApplicable legislation includes: Advertising Standards Authority (ASA) and the Committee of Advertising• Data Protection Act 1998 (to be Practice (CAP). replaced by the General Data Protection Regulation (GDPR) • The CAP Code of in May 2018) Non-Broadcasting Advertising,• Privacy and Electronic Sales Promotion and DirectCommunications (EC Directive) Marketing is enforced by ASA.(Amendment) Regulations (PECR) (to You need to familiarise yourself with the CAP Code and always adhere tobe replaced by the ePrivacy Regula- the general rules and those that are specific to the industry in which yourtion (ePR) in May 2018) business operates.• Consumer Protection from Unfair Trading Regulations 2008 (CPRs)• Business Protection from REGULATORY ORGANISATIONSMisleading Marketing Regulations2008 (BPRs)• Defamation Act 2013 • ASA • T rading Standards (TS) • The Competition and Markets Authority (CMA) • The Information Commissioner’s Office (ICO) stephensonlaw.co.uk

7THIRD PARTY INTELLECTUALPROPERTY RIGHTS (IPR)Intellectual Property (IP) describes ownership of an intellectual ‘product’ whichmay have commercial value. Materials found online are often protected by IPR.There are two main areas to consider when using social media in marketing activities:• Copyright • TrademarksIPR INFRINGEMENTCopyright or trademark infringementoccurs when you use a piece ofwork which is subject to protectionwithout having the appropriatepermissions, whether from the rightsowner or through the platform terms(e.g. Twitter allow retweeting withoutfear of infringing the original tweet).stephensonlaw.co.uk

8COPYRIGHT TRADEMARKSCopyright covers materials including Trademarks include logos, slogans andphotographs, literature, music, film, words and are ‘signs’ used to distinguishaudio and art. Unlike trademarks, products or services of one businesscopyright is automatic and does not from another.need to be registered. A trademark owner has the rightA copyright owner has certain economic to prevent unauthorised use of itsand moral rights – for example, the trademark(s).right to be credited as the author andthe right to be financially rewarded ifanother party uses the material.In most cases, a copyright owner needsto give permission for the material tobe used, although there are exceptions. ©©™™Copyright is a form of (legal) protection A trademark is typically thought of asprovided for original works of authorship, the logo, design or catch-phrase thatincluding literary, dramatic, musical, identifies a business or brand.graphic and audio-visual creations. stephensonlaw.co.uk

9CONSEQUENCES OFNON-COMPLIANCENon-compliance with the relevant Such penalties can differ in severitylegislation and regulation of social and the level of sanction will dependmedia practices could result in serious on the extent of non-compliance.consequences for your business. Common ways that businesses are found to be non-compliant with social media regulation is by faking reviews or paying for online reviews without making this clear. Customer reviewsstephensonlaw.co.uk

10TRADING STANDARDS, INFORMATIONCOMPETITION AND COMMISSIONER’S OFFICEMARKETS AUTHORITY Penalties within the power of thePenalties within the powers of TS ICO include:and CMA include: • Fines of up to £500,000 for • Investigating alleged infringement infringement of the DPA and PECR of the CPRs and BPRs • Criminal liability for failure to • Taking enforcement proceedings register with the ICO and knowingly through the criminal court, or recklessly obtaining personal potentially resulting in unlimited data without the consent of the fines and imprisonment for the data controller, amongst other senior officers or managers of breaches the advertiser THIRD PARTY IPRADVERTISING STANDARDS INFRINGEMENT CLAIMSAUTHORITY There are various actions whichPenalties within the power of the could be taken in the event of an IPRASA include: infringement, which include: • Investigation and adjudication of • R emoval of the offending material advertising compliance with the • Termination of the relevant social CAP Code media account • Requirement that advertising be • Litigation claims for damages amended or no longer shown • Request that media owners refuse advertising space for the misleading advertiser, withdraw certain trading privileges or refer the matter to Trading Standards • Require advertisers to submit their advertising for pre-vetting stephensonlaw.co.uk

11SHARINGTHIRD PARTY CONTENTThird party content is content that This section will outline whathas been created by someone else user generated content is andand can take many different forms. provide guidance on how to obtain permission when using such contentSuch content can be vital for on social media.maintaining, building and engagingyour audience. However, you shouldtake care to clearly assign creditwhenever you share third partycontent by asking for permissionand respecting copyright rules.stephensonlaw.co.uk

12USER GENERATED USER REVIEWSCONTENT (UGC) & TESTIMONIALSUGC is any content that has been If you incorporate a review intocreated by a consumer, whether your marketing communications whichsolicited by your organisation (such has been obtained from a third party,as a response to a competition) or copied from a third-party website orentirely self-initiated (such as a tweet social media platform, the review isthey sent). likely to be considered advertising content and you are responsible forYou may wish to use UGC in your its compliance with the CAP Code.marketing, but you first have to ensureyou have the appropriate consent A consumer’s tweet about the qualityfrom the person who generated of your services which you use onthe content. The T&Cs of a social your website or social networksmedia platform may have obtained (embedded tweet) is considered to bethe consent you need on your behalf, a TESTIMONIAL or REVIEW.so it is always worthwhile checking. When using a review or testimonial inThe CAP Code has advised that UGC your marketing material always ensurewill be deemed part of your marketing you have:communications if you: • documentary evidence that it is • incorporate it into your marketing genuine and 100% fact-based; and communications, e.g. you use a UGC image in your marketing; • o btain the permission from the individual that provided the review / • actively promote the UGC, e.g. by testimonial to use it. retweeting or “liking” it; or • exercise control over it, e.g. controlling the subject matter of the content by asking users to post a response to a question.This means that you assumeresponsibility for the compliance ofUGC whenever you use it. stephensonlaw.co.uk

13AFFILIATE MARKETING ANDSOCIAL INFLUENCERSAffiliate marketing and social WHAT IS AFFILIATEinfluencers are a new way to attract MARKETING / SOCIALconsumers to your business by way INFLUENCING?of a celebrity, icon or blogger. Affiliate marketing / social influencingIt is both yours and the affiliates / is where an affiliate such as a bloggerinfluencers responsibility to make or Instagrammer is rewarded by asure you are complying with the business for each new consumer theycorrect rules and responsibilities attract through their marketing efforts.on your social media platforms. If you are using affiliates or influencersThis section will consider the to market your products or services,responsibilities of you and your the CAP Code may apply.affiliates / influencers when usingsocial media to market yourproducts or services, includingchecklists to apply and examplesof advertisement identifiers. ADstephensonlaw.co.uk

14DOES THE CAP CODE APPLY? BLOGSThe CAP Code will apply where: In blog posts and articles, the most straightforward way to show the • there is a payment (including the consumer that the content concerns supply of free items or reciprocal an affiliated link is to include ‘AD’ in arrangements); and the title of the post. • you have editorial control over This will make it clear to the consumer the content (a good benchmark is before they click through or read whether you have final approval). the content. Any “co-created” content would also apply here, even if you don’t make SOCIAL MEDIA POSTS any amendments to the content. Posts on social media should beWhen a social media post passes this clearly identifiable that they consisttest, it will be subject to the CAP Code of advertising material. This can beand must be obviously identifiable as achieved by placing ‘AD’ at thean advertisement prior to consumer beginning of the post.engagement. WHAT IDENTIFIERSWHAT DOES ‘PRIOR TO ARE ACCEPTABLE?CONSUMER ENGAGEMENT’MEAN? check-ci ADThis means BEFORE the consumer check-ci #Adreads, views, or otherwise interactswith the post in question. check-ci AdvertorialINSTAGRAM check-ci AdvertIn contexts where only an image is check-ci Advertisement featureinitially visible, for example on Instagram,an identifier like “AD” should be included times-ci Sponsored byon the image itself so that the nature ofthe content (an advertisement) is clear times-ci In collaboration withbefore consumer click on it. times-ci In association with stephensonlaw.co.uk

15COMPETITIONS ANDPRIZE DRAWSSocial media is a great way for THE STAGESbusinesses to reach out to consumersin an informal and spontaneous way There are two main stages of runningand with the development of social a competition or a prize draw:media platforms there are more waysto host sales promotions, one being 1. design the competition in suchprize draws and competitions. a way that it isn’t in danger of becoming an illegal lottery; andRegardless of the social media platform,promotions must be run fairly and 2. comply with the CAP Code.marketing communications for thepromotion must not be misleading. The main riskwhen running a competition or prize draw is that it could constituteWhether a prize promotion is run on an illegal lottery (which would fall undersocial media or not, it must still meet the scope of the Gambling Act 2005).the requirements of the CAP Code. A lottery comprises of three elements:This section will outline the CHANCE + PRIZE + CONSIDERATION.requirements you must adhere tounder the CAP Code when running To avoid running an illegal lottery,a competition or prize draw on your you should:social media network. • d esign the competition so that 1 2 34 5 success depends on the existence of 6 skill, judgement or knowledge; or 9 78 • make sure your competition entry 15 10 11 is free-of-charge. 12 If success requires skill etc, then it will be considered a competition. If success 13 14 doesn't require skill etc, but entry is free, it will be considered a prize draw. 16 17 18 19stephensonlaw.co.uk

16WHAT LEVEL OF SKILL, COMPLIANCE WITH THEJUDGEMENT AND / OR CAP CODEKNOWLEDGE IS NECESSARY? The CAP Code requires promotionsHere are some examples: (including those on social media) to be legal, decent, honest and truthful. • A competition that requires You need to ensure you comply with entrants to answer a question the following: such as \"what is the capital of France?\", \"what is 2+2?\" or \"who • include significant information in is the president of the United the initial advert (including the States of America?\" would probably closing date, what the prize is, how to not be considered as requiring skill, enter and any restrictions on entry); judgement or knowledge. • include a link to the full T&Cs • A competition that requires that apply; entrants to draw a picture to enter would not be considered • include all eligible entrants when as requiring skill, judgement or selecting winners; knowledge, unless the pictures were then judged on merit. • select prize draw winners at random; and • The typical crossword puzzle would normally be considered as requiring • actually award the prize! skill, judgement or knowledge - but a very easy crossword puzzle There is an exemption for platforms competition run at a crossword- that severely restrict the space of the addicts' convention might not. initial ad, such as Twitter, which limits posts to 280 characters. However,Ensure you can justify, if necessary, your you are expected to include as muchjudgement that your competition falls information as is practicable!outside the scope of the GamblingAct 2005. Key rules: 1. Ensure you are not running an illegal lottery 2. Comply with the CAP Code requirements set out above 3. Ensure you are aware of and comply with the relevant platform’s rules and T&Cs stephensonlaw.co.uk

17GLOSSARYLEGISLATION REGULATORY ORGANISATIONSDPA Data Protection Act ASA Advertising StandardsGDPR General Data Authority Protection Regulation CAP Committee ofPECR Privacy and Electronic Advertising Practice Communications (EC Directive) ICO The Information (Amendment) Regulation Commissioner’s OfficeePR E-privacy Regulation TS Trading Standards CMA Competition andCPRs Consumer Protections for Unfair Trading Markets Authority Regulations 2008 OTHERBPRs Business Protection from Misleading Marketing IPR Intellectual Regulations 2008 Property Rights UGC User Generated Content T&Cs Terms and Conditionsstephensonlaw.co.uk



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