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Social Media Marketing - The Issues and Risks
Daniel Cole, Gowling Lafleur Henderson LLP
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My 2 Favourite Questions:
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Why don’t you use social media?
Short Answer:
Detailed Answer:
“Future political aspirations…”
“Quebec juice maker pays opponent’s legal fees after soap ruling gets Twitter in a lather”
Seriously… You Don’t Use Facebook?
United Breaks Guitars
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How do you advise on Facebook functionality without having a Facebook account?
Answer:
My Wife Will Kill Me For This…
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Three Key Rules of Thumb:
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Number One:
If you are looking for RISK FREE…. then social media is NOT your playground
This is Important…
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Number Two:
You cannot predict CRAZY
This is also Important…
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Number Three:
• Always Remember: Advertising on social media sites is still subject to the same basic rules, regulations and policies that apply to other more traditional forms of media.
• contest law; • false and misleading advertising; • privacy law;• IP infringements;
• BUT…you also now need to consider each social media site’s:• terms of use;• licenses; • advertising guidelines;
• contest and promotions guidelines;
• CAUTION: These terms and conditions are revised very frequently and it is your responsibility to stay in compliance!
This is Important Too!
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Key Sources of Liability:
Advertiser generated:
• Materials deliberately placed online by advertiser, including advertisements posted to social media sites
Employee/Moderator Generated:
• Representations made by employees and site moderators “in the course of employment” may be attributable to advertiser
User Generated:
• Issues may arise where users are asked to submit their own content.
• Advertisers may have difficulty avoiding liability for such content when it is created and published at their request
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Consequences for Violations:
• Legal: There is always the possibility of fines, penalties, jail time, class action liability, etc…
• Contractual: The terms of use for most social media sites provide that a violation will result in a suspension of the user’s account (e.g. shutting down your Facebook page or Twitter feed). May also be liability for breach of contract.
• Reputational Damage: Any of these “violations” can result in severe reputational harm to the brand.
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Sourcing Content From Social Media Sites:
• Basic intellectual property laws still apply (copyright, trade-mark, etc)
• Can you use the site for “commercial” purposes?
• Is there a license in the terms that allow 3rd party users of the site to make use of posted content by other (commercial) users?
• If so, are there any rules regarding how the content must (or can’t) be used?• YouTube – Embeddable Player• Facebook – Permission to scrape… plus, prohibition on use of data in advertising
• Even if a license exists, you still need to be aware of issues like implied endorsement (e.g. celebrities)
• You need to carefully check EACH social media site before you make commercial use of ANY materials
• Always start from the basic assumption that all posted content that is being copied and published will constitute infringement – and then look for an exclusion in the terms
Is Stealing Still Stealing if on Social Media?
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Joining the Social Conversation:
• Can I listen to a conversation?• Can I join a conversation?• Can I re-tweet that?
Can I…
Contests and Social Media
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Facebook- Promotions Guidelines
*** The Promotions Guidelines were last revised on May 9, 2014
The full promotions guidelines may be read online:https://www.facebook.com/page_guidelines.php#promotionsguidelines
Key Change:
You used to be prohibited from administering, or communicating about, a promotion on Facebook if it was open or marketed to people under the age of 18. Also, the specific prohibitions existed on certain types of promotions (e.g. those related to alcohol, dairy, gambling, and gasoline).
NOW… the general rule is that the promotion must be legal in the market(s) in which it is run…
Facebook Contests
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Administering Promotions on Facebook:
• Promotions on Facebook must include:• A complete release of Facebook by each participant • Acknowledgment that the promotion is in no way sponsored,
endorsed or administered by, or associated with, Facebook
“The Contest is in no way sponsored, endorsed or administered by, or associated with Facebook. Facebook is completely released of all liability by each entrant in this Contest. Any questions, comments or complaints regarding the Contest must be directed to the Sponsor and not Facebook.”
Facebook Contests
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Administering Promotions on Facebook:
• KEY CHANGE: Promotions previously needed to be administered within Apps on Facebook, either on a Canvas Page or an app on a Page Tab.
• OLD RULE: You COULD NOT utilize Facebook’s native functionality in ANY way.
• NEW RULE: Promotions may now be administered on Pages or within apps on Facebook. So, it now appears you can:
• give a user an automatic entry for liking a page or checking in to a place;
• condition registration or entry upon the user taking any action using any Facebook features or functionality
• notify winners through Facebook (e.g. Facebook messages, chat, or posts on profiles or pages)
• use Facebook features or functionality, such as the Like button, as a voting mechanism for a promotion
Facebook Contests
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Administering Promotions on Facebook:
• DO NOT use Personal Timelines to administer a promotion (e.g. “share on your Timeline to enter” or “share on your friend's Timeline to get additional entries”).
• DO NOT expect Facebook to assist you in the administration of your promotion
• “if you use our service to administer your promotion, you do so at your own risk”
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Administering Promotions on Facebook: • Sharing: Platform Policies prohibit you from offering an incentive to users in certain contexts:
Only incentivize a person to log into your app, like your app’s Page, enter a promotion on your app’s Page, or check-in at a place. Don’t incentivize other actions.
• Unacceptable: Share this and earn a bonus entry
• Acceptable: Share this and earn a bonus entry when your friend accepts your invitation and enters the promotion.
Facebook Contests
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Administering Promotions on Facebook:
• Structuring Facebook Refer-A-Friend:
Follow the on-screen instructions by clicking on the "[name]" button after completing your Registration to invite your friend(s) to enter the Contest. You will NOT receive anything for the act of sending the invitation. However, you have the potential to earn one (1) additional Entry if your friend accepts your invitation by clicking on the shared link and entering directly through the Application in accordance with these Official Rules. Example: If a friend you recommended accepts your invitation and enters the Promotion, then you will earn one (1) additional Entry.
Facebook Contests
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Working with Facebook:
• A media buy is no longer required to administer a contest on Facebook… but, clients with a media buy tend to have reps that are willing to “work with them” to help structure the contest in a way that does not violate Facebook policies.
Facebook Contests
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Twitter Contests
Twitter has specific Guidelines for Contests on Twitter
When you conduct a contest on Twitter, the Guidelines require you to: • Discourage the creation of multiple Twitter accounts; • Discourage the repeated posting of the same tweet;• Ask users to include an @reply to you in their update, a form of
reply which will permit you to see all of the entrants;• Encourage the use of topics relevant to the contest; • Follow the Twitter Rules
The full promotions guidelines may be read online:http://support.twitter.com/groups/31-twitter-basics/topics/114-guidelines-best-practices/articles/68877-guidelines-for-contests-on-twitter
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Administering Promotions on Twitter:
• Contest Rules:
• Clearly explain to users that a Twitter account is required and how to become a “follower” of your channel:
If you do not have a Twitter account, visit www.twitter.com and register in accordance with the enrolment instructions for a free Twitter account. In addition, eligible entrants must become a “follower” of the official @Gowlings channel on Twitter (note: you can un-follow at any time). To become a follower, an eligible entrant must: (i) visit www.twitter.com/gowlings; OR (ii) from his/her Twitter home page, click on the "Find People" tab and perform a search for “Gowlings”; AND (iii) click on the "Follow" button corresponding to the official @Gowlings channel.
Twitter Contests
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Administering Promotions on Twitter:
• Contest Rules:
• Clearly explain to users what is required and what will constitute an eligible entry:
You can enter the Contest by tweeting a tip (the “Tip(s)”) to the @Gowlings channel using your Twitter account. To be eligible, your Tip must:
describe and/or discuss a tip, suggestion, or experience that you feel would benefit Canadian small businesses to organize the legal management of their business;
include the following hashtag --- #tipcontest (the “Hashtag”); comply with the Twitter Terms of Service and Twitter Rules available at
www.twitter.com; and conform to Twitter’s (140) character limitation, including the Hashtag.
Twitter Contests
YouTube Contests
YouTube’s Contest Platform Terms and Conditions
When you conduct a contest on YouTube, the Guidelines require you to:
• Post “Official Rules” on the contest entrance page, which must be in compliance with YouTube’s Terms of Use;
• Require entrants to comply with YouTube’s Terms of Use;• Prohibit a purchase or consideration requirement for entering;• Monitor entrants for copyright infringement;• Indemnify YouTube
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The full promotions guidelines may be read online:https://support.google.com/youtube/answer/1620498?hl=en
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Pinterest Contests
Pinterest’s Terms of Service and Acceptable Use Policy:
When you use Pinterest for marketing or contests, the Terms require:• Not to use content that violates any law;• Not to use offensive or hateful content;• Indemnify Pinterest;• Grant Pinterest a world-wide non-exclusive right to reproduce,
perform, distribute, modify all content;
The full Terms of Service may be read online:http://pinterest.com/about/terms/
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Marketing with Instagram
Instagram’s Terms of Use
When you use Instagram for marketing or photo contests, the Terms of Use require:
• Not to use nude or sexually suggestive images;• Comply with local laws;• Post only works you or users own the rights in;• Not to crawl or scrape Instagram content;• Grant Instagram a world-wide non-exclusive right to reproduce,
perform, distribute, modify all content;
The full Terms of Use may be read online:http://instagram.com/about/legal/terms/
Social Media Governance and Policies
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Social Media Policies:
• Employee Policy: • Clear rules regarding who may Blog, Post, or Tweet on behalf of company;• Require representatives to comply with the WOMMA Code of Ethics, including by
identifying themselves as authorized company representatives; • A clear outline of the potential repercussions should an employee or representative
break the rules
• Moderation Policy: • A discussion of how the online community will be monitored; • Identify how certain materials will be dealt with when identified, including whether
there will be an overarching discretion to remove any content
• Posting Policy: • The rules that community members must follow when posting content. For
example: • users must have the rights to all materials they post;• opinions appearing on the site are not necessarily those of company; • posters agree to keep their posted content civil, and not
to post offensive materials
Social Media Policies
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Moderation is the Key:
• The site needs to be moderated virtually 24/7 • Things can (and often do) go awry VERY quickly!
• The moderators need CLEAR direction • The moderation policy needs to identify not only HOW certain materials will be dealt
with… but also WHO is responsible for dealing with them…• Malicious post against another user – moderator?• Complaint about the functionality of the product? – product representative?• Negative comments about a sensitive political situation – PR Team?
• Ensure that matters are dealt with swiftly, appropriately and by the right people!
• MODERATION IS A DOUBLE-EDGED SWORD!!! • It is NOT desirable to appear as “Big Brother” on a social media site… but• material which breaches third party rights, or offends certain
community standards should not remain on the site.
Please… Moderate!
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Posting Policy:
• Two Step Approach:
“We ask that you please not post any comments, photos, videos or other materials on this page that may be inappropriate in nature. We retain the right to remove inappropriate materials at our discretion. Click here to see our complete Posting Policy. We are not responsible for materials posted by third party users of this page. We remind you that such materials do not necessarily reflect our point of view, but rather that of the page users.”
Social Media is not about Lengthy Policies, Dan!
Limiting Liability in Social Media
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Minimizing Exposure (Consumer Generated Content):
• Ensure the rules/terms CLEARLY explain the types of materials that are NOT permissible“Content must not be defamatory, trade libelous, pornographic or obscene, and must not contain, depict, include, discuss or involve, without limitation, any of the following: nudity; alcohol/drug consumption or smoking; explicit or graphic sexual activity, or sexual innuendo; crude, vulgar or offensive language and/or symbols; derogatory characterizations of any ethnic, racial, sexual, religious or other groups; content that endorses, condones and/or discusses any illegal, inappropriate or risky behaviour or conduct; personal information of individuals, including, without limitation, names, telephone numbers and addresses (physical or electronic); commercial messages, comparisons or solicitations for products or services other than products of Sponsor; any identifiable third party products, trade-marks, brands and/or logos, other than those of Sponsor (e.g. any clothing worn and/or products appearing in your Video must not contain any visible logos, trade-marks or other third party materials unless the appropriate consents have been obtained (note: all identifiable third party products, trade-marks, brands and/or logos for which consent has not been obtained by the entrant must be blurred out so as to be unrecognizable); conduct or other activities in violation of these Rules; and/or any other content that is or could be considered inappropriate, unsuitable or offensive, all as determined by the Sponsor in its sole and absolute discretion.”
Limiting Liability
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Minimizing Exposure (Consumer Generated Content):
• DO NOT allow material to be directly posted online without first being passed through a content moderator“The Sponsor and/or its promotional agency or designated content moderator (the “Reviewer”) will initially screen every Video. Any Video that the Reviewer deems, in its sole and absolute discretion, to violate the terms and conditions set forth in these Rules will not be posted.”
• DO NOT “approve” anything…
• ALWAYS reserve the right to remove and/or disqualify materials AT ANY TIME and FOR ANY REASON
“For greater certainty, the Reviewer reserves the right, in its sole and absolute discretion and at any time, to modify, edit or remove any Video, or to request an entrant to modify or edit his or her Video, if a complaint is received with respect to the Video, or for any other reason.”
Limiting Liability
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Minimizing Exposure (Consumer Generated Content):
•Allow users of the site to contact you regarding any material on your site that they consider inappropriate
•Give the community a chance to self-correct (e.g. trolls and malicious posters are often dealt with swiftly by the community) – BUT, be prepared to step-in
•ALWAYS consider PR issues and consult legal before issuing an apology or taking further steps.
Limiting Liability
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Key Online and Social Media Contest Issue: Voter Cheating
• Voting is VERY susceptible to cheating.• Huge potential for PR backlash if the public suspects that the
ultimate winner won solely because he/she found a way to cheat by obtaining more votes than otherwise permitted by the rules.
Minimizing Exposure:• Set an ENFORCABLE voting limit:
“LIMIT: a Registered Voter can Vote only one (1) time per day (defined as [time] ET to [time] ET) during the Voting Period.”
Limiting Liability
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• Have backend capabilities to track and disqualify.• Reserve the right to disqualify votes/voters/entries:
“If it is discovered that attempts were made by a Registered Voter (or any individual purporting to be a Registered Voter) to: (i) Vote more than once per Registered Voter per day (defined as 12:00:01 am ET to 11:59:59 pm ET) during the Voting Period; (ii) use any automated, script, macro or robotic program(s) to submit Votes; or (iii) engage in systematic voting from the same computer/IP address; then it may result in the disqualification, in the sole and absolute discretion of the Sponsor, of the Votes and/or Entry to which such Votes relate.”
• Require voters to register before they are allowed to vote.• Include a CAPTCHA mechanism on the vote page• Always retain the right to VERIFY votes:
“All Votes are subject to verification. The Sponsor reserves the right, in its sole and absolute discretion, to require proof of identity and/or eligibility (in a form acceptable to the Sponsor) from any voter to participate in this Contest or for any Votes entered, or purportedly entered, by such voter to be considered valid for the purposes of this Contest.”
Limiting Liability
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• Develop a mechanism to verify votes:
“When a Registered Voter submits a Vote, he/she will automatically receive an email (the “Email”) from the Sponsor (at the email address provided on the voter registration form) with a validation link (the “Link”). To validate the Vote, the Registered Voter must click on the Link in the Email during the Voting Period. If the Vote is not validated in accordance with this procedure, then that Vote will be discarded.”
• Make voting a component of the prize selection process:• Have a panel of judges evaluate the eligible entries on the
basis of stated criteria – one of which can be the number of eligible votes received during the voting period.
• Make the percentage weight allocated to the voting element less than that of the other judged criteria – i.e. sponsor ultimately retains control of selecting the winner.
Limiting Liability
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Other Voting Issues:
• International pools of people who vote for each other or offer other incentives to vote for their entry.
“Individuals may encourage other individuals to vote for an Entry (e.g. via various social media sites and platforms); however, no form of incentive, inducement, prize or chance of receiving any incentive, inducement, or prize may be offered as part of such encouragement in furtherance of receiving such individual’s vote for any Entry. Any individual determined by the Sponsor and/or its representative to be engaging in such behaviour will be disqualified, and the corresponding Votes, Entry and/or entrant
is subject to disqualification in the sole and absolute discretion of the Sponsor.”
• Use of Leader Boards“IMPORTANT NOTE: JUST BECAUSE AN ENTRY APPEARS AT THE TOP OF THE VOTING LEADERBOARD AT THE END OF A WEEK DOES NOT MEAN THAT THE ENTRANT ASSOCIATED WITH THAT ENTRY IS A “WINNER”. ANY OR ALL VOTE TOTALS MAY BE VERIFIED BY THE SPONSOR IN ITS SOLE AND ABSOLUTE DISCRETION AT ANY TIME AND FOR ANY REASON. THE LEADERBOARD IS FOR ENTERTAINMENT PROPOSES ONLY. ONLY THE SPONSOR CAN DEEM AN ENTRANT TO BE AN ELIGIBLE WINNER.”
Limiting Liability
Responding to Social Media Content
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Key Considerations in Responding:
• Keep in mind that the page has a public audience;
• Always respond in a timely manner;
• Be positive, energetic and engaging;
• Avoid cookie-cutter responses;
• Anything you say/send/post may be used against you;
• Remember that social media users place an extremely high premium on transparency and openness;
• Be consistent across your social and other advertising channels.
To Respond or Not To Respond…
montréal ottawa toronto hamilton waterloo region calgary vancouver moscow london
This is me…Daniel Cole
Tel: (416) 814-5666
Email: [email protected]
