Archive for the 'Social Media' Category

Our Employment Law colleagues blog on another Employment Tribunal case related to an employee’s use of social media. In this case, the employer’s social media policy was relevant to the Tribunal’s dismissal of the employee’s claim.

Brodies Employment Blog

Recently, there have been a number of Employment Tribunal cases focusing on employees’ Facebook posts. In Weeks v Everything Everywhere Limited, the claimant was dismissed after making posts that compared his employer to Dante’s Inferno.

Everything Everywhere Limited (EEL) employed Mr Weeks as a customer service adviser. Its social media policy warned employees to avoid making posts that could damage EEL’s reputation or be viewed as bullying and harassment.

Mr Weeks frequently made Facebook posts that likened EEL to Dante’s classical portrayal of Hell, such as “Dante’s awaits me – what a downer 12 hours of love and mirth“. Ms Lynn, one of his colleagues, reported these comments to Mr Groom, his line manager. Mr Groom formally warned Mr Weeks to stop posting in this manner.

After receiving the warning, Mr Weeks made posts which Ms Lynn found threatening. For example, he posted “it saddens me that people…

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Leveson, Royal Charters and the future of press regulation in Scotland

On Monday the three main political parties in Westminster agreed on a plan to implement the Leveson Report’s press regulation recommendations in England and Wales.

The plan
The agreed approach involves a Royal Charter which will establish a new regulator for the press, and amendments to the Enterprise and Regulatory Reform Bill (to help entrench the Royal Charter so that it can only be dissolved by a two-thirds majority vote of both the House of Commons and also House of Lords) and the Crime and Court Bill (so that all “relevant publishers” who do not sign up to the new regulator will pay extra or exemplary (punitive) damages for libel and breaches of privacy). 

The Royal Charter is surprisingly difficult to find, but here is a link.  It remains to be seen whether the new plan will gain widespread acceptance.

Labour leader Ed Miliband has claimed that:

What we have agreed is essentially the royal charter that Nick Clegg and I published on Friday. It will be underpinned by statute. Why is that important? Because it stops ministers or the press meddling with it, watering it down in the future.

Tough talking, but what exactly does Ed Miliband mean when he says “essentially the royal charter”?  What might end up being different?

Well, according to the Royal Charter as drafted at present, a “relevant publisher” means:

a person (other than a broadcaster) who publishes in the United Kingdom:

i) a newspaper or magazine containing news-related material, or
ii) a website containing news-related material (whether or not related to a newspaper or magazine)

It’s an alarmingly wide definition, which could capture not just foreign news websites but also bloggers and perhaps Tweeters. It doesn’t entirely correspond with Culture Secretary Maria Miller’s assertion that:

a publisher would have to meet the three tests of whether the publication is publishing news-related material in the course of a business, whether their material is written by a range of authors – this would exclude a one-man band or a single blogger – and whether that material is subject to editorial control.

By way of example, here on Brodies Techblog we have a team of bloggers, we publish news-related material in our blogs (in that we comment on topical legal issues), and our posts are subject to editorial control before they are published. Did Cameron, Milliband and Clegg have blogs like this in their sights when agreeing the draft charter? Should a blog like this be treated differently from the blog of a individual, but high profile and influential blogger? It’s not clear.

What is clear is that there is still work to be done on the drafting of the charter.

Should the press be regulated like broadcasters?
An interesting – but often overlooked – aspect of the press regulation debate is that broadcasters are regulated by communications regulator Ofcom.

The traditional freedom of the press (particularly in comparison to broadcasting) has complex roots and justifications, including the practical issue of scarcity of broadcast spectrum, which has led to far stricter regulation of television and radio broadcasters.

As a consequence of Ofcom’s regulatory control over broadcasters, broadcasters’ websites are specifically excluded from the Royal Charter definition of “publishers” set out above.  These websites will continue to be regulated by Ofcom.

The Scottish dimension
Press regulation is a devolved competency of the Scottish Parliament.  Alex Salmond has said the concept of a UK-wide regulator backed by Royal Charter may be “an idea worthy of consideration”.

It appears that the First Minister is keen to distance himself from the report produced of the Expert Group on the Leveson Report in Scotland, better known as the “McCluskey Report” (in reference to the Group’s chair, Lord McCluskey), which was published three days before the Westminster announcement.

The recommendations were widely derided last week as being draconian and having gone too far.

Allan Rennie, editor-in-chief of Media Scotland, said:

it’s not just about the press, it’s about anyone in Scotland who dares to express an opinion.

Analysis of a Report and recommendations which appear stillborn are perhaps academic, but it’s not entirely easy to reconcile some of the more vigorous attacks on the McCluskey Report with the actual content of the Report’s proposed Draft Press Standards (Scotland) Bill.

For example, one of the most widely repeated claims over the weekend was that the proposed draft Bill would apply to any publication which can be viewed from Scotland (in other words, anything on the internet, regardless of where the author of the content in question is located). While it’s correct that in the case of allegedly defamatory publications posted on the internet it is generally accepted that “publication” takes place where the article is downloaded, the proposed draft Bill didn’t explicitly refer to this understanding of “publication”.

It referred instead to a publication which “takes place in Scotland”. Further, paragraph 20 of the McCluskey Report specifically stated that the proposed draft Bill was written in “plain English”. (On the other hand, it does seem curious that the proposed draft Bill dispensed with the “publishes in the United Kingdom” wording in several of the draft bills that have been in circulation recently, including Hacked Off’s “Proposed Media Freedom and Regulatory Standards Bill”.)

Differences under the Scottish legal system
Less ambiguous was the McCluskey Report’s conclusion that

we have reached the view that there is no practical alternative to making [the new regulation system] compulsory for all news-related publishers.

As discussed above, the new plan agreed by the three main parties in Westminster does not provide for compulsory opt-in, but instead envisages exemplary damages for publishers who fail to sign up to the new regulator.

However, because damages under Scots civil law are purely compensatory, the concept of exemplary or punitive damages is unknown in Scotland. This is explained in further detail in the Scottish Government’s “Carrots and Sticks” Leveson Briefing Note.

There are also other aspects of Scots Law which would require consideration should the Royal Charter plan be followed, including arbitration and court expenses (in Scotland “costs”).

However, none of these problems would be insurmountable, and the McCluskey Report itself noted at Paragraph 10:

Scottish legislation could provide for a separate Scottish Recognition Body. We do not consider that there is anything in such a proposal that would prevent the formation of a single UK-wide Regulatory Body if that as considered appropriate”.

Alex Salmond has said that he shall continue cross-party talks on press regulation, and report to the Scottish Parliament after Easter. The Scottish Government has separately sought clarification from the UK Government on the impact of the proposed Royal Charter in Scotland.

For the timebeing, however, the future regulation of the press and the web in Scotland (or available in Scotland), and its scope, remains unclear, leaving publishers in the UK uncertain as to whether they will be subject to two different regimes or a single, harmonised, regime.

We will continue to follow this debate as it evolves.

John-McGonagle

Riding on the #sandwichvan – some lessons for enterprise use of social media

Last week I read a very interesting guest post on the new Scottish Public Sector Digital Group blog. The blog was posted by an e-government manager at Aberdeen City Council, and recounts the Council’s experiences in using a recent trending story on Twittter to push out information to citizens in Aberdeen.

The blogpost is a essential reading for any organisation that uses social media – not just those in the public sector.

The background
The backdrop to the story is the so-called “Sandwich Van” email, where last month an employee at an engineering company in Aberdeen accidentally copied an embarassing email exchange between her and her fiancé to the entire office (with the subject line “Sandwich Van”). That email was then sent out of the organisation by another employee and within a matter of hours had made its way around the world. As is the way these days, the email was also posted on Twitter, and the hashtag “#sandwichvan” quickly started trending.

The e-government manager at the Council saw this, and used a bit of ingenuity when posting a tweet (using the council’s official twitter account) with a link to information about road gritting in the Aberdeen Council area:

Whether you drive a #bus #car or #sandwichvan in Aberdeen you’ll find useful gritting + snow clearing info here: http://bit.ly/WMYGfj

The reaction
The tweet didn’t link directly to the original story (or tell you anything about it), but was (I think) an innocent and fun attempt to widen local awareness about road conditions that night by riding on the tails of a trending hashtag. According to the blog post, initial analytics suggest that this was successful.

However, another employee at the Council (not familiar with social media) was apparently nervous about the tweet and the Council’s association with a story that ultimately led to the people involved resigning from their jobs, and decided that the tweet should be deleted. It appears that no discussion took place with the original poster before the tweet was deleted.

The reaction on Twitter (as evidenced by the healthy and informed debate in the comments section of the blogpost) was equally split:

  • Some people commended the Council for actively engaging in social media in an entertaining way – something that many large organisations are not always very good at.
  • Others felt that it was not appropriate for the Council, as a public body, to (or to be seen to) be capitalising on the public embarassment of two of its citizens.
  • Some felt that the tweet breached Twitter’s house rules as it was unrelated to the #Sandwichvan hashtag (although given the vagueness of Twitter’s guidance on this, in my view this is a moot point in relation to this particular tweet).
  • Others were equally outraged that having posted the tweet the Council then deleted it, something that is often considered as bad online etiquette.

What can we learn?
I’ll leave it up to you to decide whether or not it was appropriate for the Council to post the tweet.

For any organisations that use social media, this story provides a number of issues to think about:

  • Who should have access to a social media account within an organisation? Do you even know who has access to your social media account? HMV certainly didn’t.
  • An inappropriate tweet can have a big impact on an organisation’s reputation. Do you have a policy on what sort of tweets are appropriate and what are not? Do you give your staff sufficient guidance?
  • A third party approval process for tweets isn’t practical. It’s therefore essential that those empowered to use an official social media account know what the organisation considers appropriate and that they are responsible for ensuring that the tweets they issue comply with those requirements. If you don’t think that person is capable of making that assessment, then they probably shouldn’t have access to the official social media account.
  • What is you policy on utilising hashtags? Is the organisation happy to be associated with trending stories? Do your staff know about Twitter’s house rules on behaviour that might lead to accounts being blocked?
  • If you subsequently decide that a tweet might not have been appropriate, what is your policy for dealing with that? How do you resolve differences of opinion internally? Who has authority to delete tweets? Is it better to simply issue an apology rather than delete it and pretend the original tweet hadn’t been posted?

These are all issues that should be addressed in an organisation’s social media policy, and should be communicated to all staff involved in the use of social media.

If you’d like to discuss your organisation’s use of social media, or would like assistance in developing a social media policy, please get in touch.

Martin Sloan

Does your social media competition follow the rules?

A “witty” epigram (which I dreamt up all by myself) is: “competition laws are boring, laws about competitions aren’t”.  I really like reading about how competitions are regulated, with the added bonus that you also gain some interesting insights into companies’ marketing strategies and profit margins.

In recent years I have noticed that the relative ease of launching promotions on social media sites such as Facebook and Twitter has resulted in the internet being awash with competitions which fail to meet the applicable rules and regulations.

Although social media competitions are usually just a fun way of reaching out to potential customers, the consequences of failing to follow the rules – or even just failing to apply the rigour traditionally administered to “offline” competitions – can be distinctly less jolly.  For example, in November Boots ran a competition on Facebook and subsequently accidentally informed all 9,000 entrants that they had won a trip to Barcelona.  It’s thought the company was forced to issue £90,000 worth of apologies.

The CAP Code
It’s important to remember that all prize promotions – whether online or otherwise – must adhere to the Advertising Standards Agency (ASA)’s CAP code (the Government-approved Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing).

In the last couple of years the ASA has published plenty of rulings regarding non-compliant online competitions (see for example the recent “118 118” ruling) whilst also maintaining a public list of non-compliant online advertisers.

Although the ASA punishments are normally limited to a bit of bad publicity, and a warning of “don’t do it again”, in theory its sanctions can extend to revocation of trading privileges (for example bulk mailing discounts) and referral to the Office of Fair Trading.

There’s not space here to list all the applicable CAP Code competition rules, but here are some really important ones:

  • don’t run what the Gambling Commission would deem an “illegal lottery” (punishable by fines and/or imprisonment); 
  • avoid running an illegal lottery by including a “skill” element (which can be part of a competition run, for example, where the competitor has to purchase a “promotional pack” of goods, providing the “promotional pack” doesn’t cost more than a “normal” pack);
  • alternatively, avoid running an illegal lottery by offering free entry (or where one route to entry is not free, at least one alternative and equally publicised “free” route to entry which costs no more than what it would normally cost to use that method of communication));
  • if you are including a skill element, remember that the law applying to participants from Northern Ireland is slightly different (so participants from Northern Ireland should still be offered a free entry route even if participants from the rest of Great Britain have to purchase, for example, a “promotional pack”).
  •  always include a closing date (and don’t change it);
  • always state what the prize actually is;
  • clearly state any restrictions (for example age; geographical location);
  • include details of the promoter;
  • tell people how winners will be informed;
  • always make it easy to find the applicable terms and conditions; and
  • ensure that any prize draw is conducted in accordance with the laws of chance, either by using a computer process that produces verifiably random results (consider using random.org), or by an independent person, or under the supervision of an independent person.

If in doubt, bear in mind Rule 8.2 of Section 8 (Sales Promotions) of the CAP Code:

Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.

Social media sites have their own rules too
Once compliance with the CAP code has been addressed, social media sites’ own rules must be complied with.  The big risk here is that if either Facebook or Twitter don’t like your competitions, then they can disable or permanently delete your accounts.  (Anecdotal evidence suggests that deleted Facebook accounts are rarely restored.)

Twitter’s guidelines are fairly straightforward, Facebook’s less so. 

In fact, the Institute of Promotional Marketing is currently working with both Facebook and Twitter to develop guidelines for brands who wish to run social media competitions.

Nevertheless, it’s still possible to read Facebook’s Promotions Guidelines and Twitter’s Guidelines and identify some broad do’s and dont’s.

On Facebook:

  • Don’t post a competition as a Status Update and ask “friends” to act upon it.  Facebook doesn’t like corporate/marketing content where social content should be, and prohibits the use of any “indigenous functionality” (Liking, Sharing, Commenting, checking-in, uploading photos to a Wall or responding to a poll/questionnaire) as a means of entering a competition.  Facebook instead recommends hosting competitions on externally hosted applications embedded into a Page App tab on your Facebook page.  (Upon reflection, the prohibition on using “Like” to enter is quite sensible – how could you tell the difference between someone just liking the page because they like your brand, or someone liking it to enter the draw?)
  • Facebook does allow you to stipulate that only people who “Like” your page can enter the competition. You are also allowed to limit people entering your competition to those who have checked into your location or who are using your Facebook app.
  • Ensure that the applicable terms and conditions acknowledge that Facebook is not associated with your competition in any way and that any personal information collected from the entrants is being sent to your company.  (In my experience a lot of terms and conditions relating to Facebook competitions fail to include this vital disclaimer.)
  • After a competition winner has been chosen, contact them off Facebook. (Make sure to collect contact details during the registration process so you don’t have a problem with this.)  You can’t use Facebook messages, chat, or posts to contact the winner.

On Twitter:

  • Discourage competitors from posting the same Tweet repeatedly.  (Competitions saying “whoever retweets this the most wins” are definitely a bad idea).  Twitter dislikes multiple Tweets because they damage the quality of searches.  The best solution is to state that multiple entries in a single day will not be accepted.
  • Encourage users to include an @reply to you in their Tweet so you can see all the entries.  Many of the complaints that reach the ASA regarding Twitter competitions involve suspicions that entries haven’t been received.  Relying on a public search may not show all relevant Tweets.

And remember that the CAP code and Gambling Commission rules outlined above will still also apply, so think about how you ensure that your competition does not accidentally become an illegal lottery.

If you have any questions about running a social media promotion, please get in touch

John-McGonagle

Our employment law colleagues blog on another employment law decision relating to the use of social media by an employee. Appears to protect an employee’s right to privacy when using social media.

Brodies Employment Blog

The recent case of  Smith v Trafford Housing Trust illustrates the extent to which an employee’s posting on Facebook can impact upon their job.

Mr Smith was demoted after he had been found guilty of gross misconduct for posting comments on Facebook opposing ‘Gay Church marriages’, describing them as ‘equality too far’. The Trust believed this amounted to gross misconduct because:

• an employee had been deeply offended;

• Mr Smith’s Facebook wall disclosed that he was a manger of the Trust;

• the terms of the Code of Conduct and Equal Opportunities policy had been breached; and

• as a manager Mr Smith had failed to uphold the Trust’s policies.

Mr Smith suffered a 40% salary cut and brought a claim for breach of contract. The High Court held that Mr Smith’s demotion and resulting reduction in salary amounted to a serious and repudiatory breach of contract. He was…

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Brodies Intellectual Property Survey Results- download now!

Recently we carried out a snapshot 60 second survey on Intellectual Property (IP) in conjunction with ADS, ScotlandIS and SCDI. We were keen to learn more about how businesses are dealing with such valuable key assets and what IP issues are of most importance to them. Responses were received from both large and small companies from a broad range of sectors.

The survey asked a number of key IP related questions such as whether audits were carried out to keep a track on the extent and value of IP, how it was used on social media platforms and whether businesses were involved in IP disputes. The results provide an interesting snapshot and insight into how businesses are dealing with IP as well as highlighting some areas where altering how IP is managed could improve the competitive advantage it gives to a business as well as maximising commercial returns.

We would like to share the results with you. They are available to download here 

Robert Buchan

Judging the balance: judiciary banned from blogging?

Judges and magistrates in England and Wales have been warned they face disciplinary action if they write about their jobs on blogs or on Twitter. 

The rules have been set out by Lord Justice Goldring, the Senior Presiding Judge, and provide that:

“Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.”

The full guidance is helpfully reproduced by Lucy Reed here.  Notably the definition of “blogging” includes “publishing material on micro-blogging sites such as Twitter”. The second sentence appears to be a nod to the fact that anonymous bloggers are sometimes a target of the media.

There is of course huge public interest in the maintenance of an independent and impartial judiciary as one of the cornerstones of our democracy.   Judges often have to administer the law in matters of life and death. There was a timely reminder of the boundaries of judge-made common law just last week, when the High Court of Justice refused to grant relief to the paralysed Tony Nicklinson that it would be lawful, on grounds of necessity, for his GP to terminate his life.  (The judges concerned expressed sympathy for Mr Nicklinson, but believed that such relief could only be granted by statutory law enacted by parliament.)

The guidance is probably aimed primarily at judges and magistrates who blog anonymously.  “Bystander”, the author of the Magistrates Blog (“Musings and Snippets from an English Magistrate… Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong”) has stated that he/she is currently “reflecting” on the guidance.

As Adam Wagner points out however, the effect of these new rules is potentially very widespread. Lots of barristers sit as part-time judges, whether in the County Court, as Deputy High Court Judges or Recorders. This guidance potentially bans them from blogging, as anyone would be able to find out that they are judges simply by checking their chambers profile.

It also seems curious that such guidance be issued specifically in regard to blogging, given that senior judges are allowed to give interviews and publish books and articles, and launch campaigns.  For example serving judge Sir Paul Coleridge was permitted to launch a public campaign earlier this year to defend marriage and protect children against the “destructive scourge” of divorce and family break down.

Judging the balance
As with all forms of communication there is a prudent balance to be struck, and hopefully the blogging guidance won’t have a chilling effect on the blogging activities of the judiciary, but merely remind them of their responsibilities.  Blogging and tweeting in the legal fraternity has been known to stray into undesirable territories. 

One of the most colourful anonymous legal bloggers (and Twitter users) was Geek Lawyer (real name David Harris) who eventually took things too far and was disbarred. Lazy headlines suggested it was thanks to his outrageous Twitter account, but in reality he represented in court a company that he had a personal interest in (the British Usenet indexing site Newzbin) without disclosing that interest, and accordingly the Bar Standards Board found him guilty of conduct which was “likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute”.

To blog or not to blog?
Offensive tweets from the Geek Lawyer Twitter account were actually a fairly minor part of the case against Mr Harris. Nevertheless, from an intellectual perspective it’s fun to take a look at the at the arguments he put forward to defend his tweets, as set out by fellow anonymous legal blogger CharonQC:

  1. It wasn’t him qua David Harris, a practising barrister – it was Geeklawyer wot dun it. Geeklawyer doesn’t exist and is not a practising barrister recognised by The Bar Council
  2. The tweets were not communications made in the course of professional practice. They were social.
  3. Social conduct does not, save in extreme cases such as criminal behaviour, form a lawful basis for sanctions by professional conduct committees as it transgresses both the right to a private life and the right to private correspondence under Article 8 of the European Convention on Human Rights.

My conclusion is that these arguments are incredibly smart, witty etc – but it would have been even smarter to have avoided the hassle in the first place.  Legal blogger Brian Inkster advises that lawyers cannot hide behind anonymity on Twitter, but I would also emphasise that they shouldn’t be put off social media either.

Many lawyers are still trying to perfect the “voice” to use on Twitter. When using my Twitter account Denislawyer, I don’t want to be dry and boring, but neither do I want to be too frivolous. I want to safeguard client confidentiality, but I also want to provide followers with context to my tweets by giving an idea of the type of work I carry out.

The importance of social media guidance
As with any business, the individual has to exercise judgement, but a clear social media policy provided by an employer or members organisation can be really helpful in setting out some boundaries.   As I recommended last month, all organisations should have in place suitable policies to guide employees and/or members regarding use of social media.

Different businesses will require different policies, and Brodies’ technology and employment lawyers can help you to develop an appropriate policy for your business.

Last opportunity to take part in our survey on how organisations identify, value and exploit their intellectual assets

Our survey on how organisations value and protect their intellectual assets closes at the end of this week.

Launched in conjunction with industry bodies ADS, SCDI and ScotlandIS, our survey is looking to identify how key intellectual property (IP) assets are dealt with and the IP issues which matter most to businesses today. We want to hear your views and appreciate your participation.

Year on year investment in the UK in intangible assets such as IP is higher than investment in traditional physical assets such as machinery or premises. IP rights, whether to a brand, design or manufacturing process, are often the most valuable asset that a business owns.

For any business to maintain a competitive advantage in the marketplace and maximise the return on investment, IP rights require to be properly managed or they will simply go to waste. Are you confident that you are making the most of your IP?

Please click here to take part (anonymously) in our 60-second survey and let us know what matters most to you in intellectual property. The survey will close at 5pm on Friday 24 August.

We look forward to sharing the results with you.

We’re keen to canvass views from as many organisations as possible. If you’d like to share the survey with your contacts then please feel free to use this shortened URL: http://brodi.es/IP_survey.

Sharing your user generated content from the Olympics – what can and can’t you do?

Are you going to the Olympics this year?

Then before you get your camera/smartphone out you should have a quick read of LOCOG‘s terms and conditions.

For those that don’t want to read the terms and conditions in full, I have set out a commentary (not a critque) on the key terms below.

Can I share my photos and video clips from the Games on social media websites?
The terms and conditions of purchase prevent spectators contain fairly restrictive conditions on what spectators may do with photos, videos and sound recordings that they take whilst attending the Games:

Images, video and sound recordings of the Games taken by a Ticket Holder cannot be used for any purpose other than for private and domestic purposes and a Ticket Holder may not license, broadcast or publish video and/or sound recordings, including on social networking websites and the internet more generally, and may not exploit images, video and/or sound recordings for commercial purposes under any circumstances, whether on the internet or otherwise, or make them available to third parties for commercial purposes.

Note in particular the prohibition on commercial exploitation (understandable, given that extensive commercial broadcasting and photography arrangements are already in place) and sharing content on social networking websites “and the internet more generally.”

“Games” means the London 2012 Olympics and London 2012 Paralympics. This will clearly include footage of the actual sporting events and stadiums, but does it go further? Given that these restrictions form part of the ticketing terms and conditions I think they can only apply to media created by spectators within the ticketed areas – so inside Olympic Park and the other venues.

So if you want to take a photo of the stadium using Instagram (to pretend that you are actually at the 1968 games in Mexico City), tag some friends in a video of an event at the North Greenwich Arena on Facebook, or even simply tweet a photo of the view of Olympic Park from the top of The Orbit, then tough.

If you share a photo of the Olympic stadium taken from outside the perimeter of Olympic Park, or the Olympic Rings hanging from Tower Bridge, then you are presumably ok.

But there are millions of spectators. Will LOCOG actually enforce this?
Whether and how LOCOG will actually enforce this restriction remains to be seen. With millions of spectators attending events, it’s hard to see how it can monitor uploads to all the social media networks, never mind ensure that non-compliant content is taken down.

And what about athletes and support staff? They won’t be subject to the terms and conditions of purchase. Have they had to accept similar restrictions on their use of social media?

The conundrum for LOCOG is the difficulty in balancing the legitimate interests of it commercial rightsholders (both broadcasters and sponsors) and inoffensive personal use of social media networks by millions of spectators.

Legally, these terms might protect those commercial rights, but whether they will work in practice is another question.

So can I share content on the London 2012 website?
Perhaps confusingly, LOCOG does appear to invite spectators to share content on its own website. But, again, you might want to check the terms of use before you do this.

As you might expect, by uploading content onto the London 2012 website you grant LOCOG a fairly wide licence to exploit and reproduce your user generated content (UGC). That licence is, on the face of it, non-exclusive, so in theory you could also grant a similar licence to other entities and (provided that you are not breaching the spectator terms and conditions mentioned above) share it on other social media websites, or offer it for commercial licensing through, say, Flickr and Getty Images.

But there is a sting in the tail. Firstly, you waive your moral rights (so have no right to be acknowledged as the creator of the UGC). Secondly, the licence is perpetual, so once uploaded it is unlikely that you can bring it to an end by, say, removing your UGC from the website. And thirdly:

…you grant us an option (“Option”) to acquire the exclusive rights to utilise such UGC in all media by way of an assignment by you to us…(“Assignment”), which Option we may exercise on giving you notice by email within 90 days from the date on which you upload the UGC, and you agree that: (A) during that 90-day period and for 30 days thereafter, you will not utilise or authorise anyone else to utilise such UGC in any commercial medium or in any public, non-commercial medium without our prior written consent; (B) within 30 days following our giving such notice, you and we shall negotiate (both acting in good faith and reasonably) on an exclusive basis a sum to be paid to you in consideration of the Assignment (“Option Sum”); (C) if the Option Sum is not agreed within such 30-day period, we shall thereafter have a right of last refusal, under which (1) you will give us written notice by email setting out the proposed terms of any bona fide third-party offer…and we shall have a 30-day period in which to acquire the same on the same terms and (3) if we decline, you may only enter into such third-party agreement subject in all applicable respects to our and our licensors’ proprietary rights and then on the exact terms offered; and (D) in the event that the Option Sum is agreed, you shall promptly following our request sign a written confirmation of the Assignment…

what does this mean in plain english?
What this means is that LOCOG has the right to acquire ownership of your UGC, should it so wish. If it gives you notice that it wishes to do this then you will have to remove the UGC from any other social media website for a period of 120 days, whilst you agree a fee for the assignment. If you don’t agree a fee then LOCOG has the right to match any fee agreed with any third party. However, the value to any third party agency may be diminished by the extensive (and perpetual) rights already granted to LOCOG when uploading the UGC to the London 2012 website.

In short, this clause appears to be another way of limiting the ability of third parties to commercially exploit Olympics related content.

So, if you take a fantastic photo of the Olympics atmosphere that you think could become an iconic image, then think carefully before sharing it on the London 2012 website.

As the terms and conditions say:

IF YOU DO NOT WANT TO GRANT THE RIGHTS SET OUT ABOVE, PLEASE DO NOT UPLOAD YOUR UGC TO THE SITE

You have been warned!

PS do you accept user generated content on your website? How do you deal with the IP issues? Let us know by taking part in our survey on how organisations value and exploit their intellectual assets.

Running a sponsored advertising campaign on social media – how do you avoid falling foul of the ASA?

Earlier this year, the ASA dismissed a complaint about a Twitter based advertising campaign run by Mars. Under the campaign, Jordan and Rio Ferdinand, tweeted a series of out of character messages (including Jordan tweeting about world economics) culminating in the following tweet:

You’re not you when you’re hungry @snickersUk #hungry #spon …

…and a photo of the celebrity holding a Snickers bar.

Fast forward a couple of months, and last week the ASA upheld a complaint about a Twitter based advertising campaign run by Nike in January of this year (around about the same time as the Mars campaign). This campaign featured the following tweet from Wayne Rooney:

My resolution – to start the year as a champion, and finish it as a champion…#makeitcount gonike.me/makeitcount

…and this from Jake Wilshere:

In 2012, I will come back for my club – and be ready for my country. #makeitcount gonike.me/Makeitcount

So why was one complaint upheld and the other dismissed?

The ASA’s rules
The relevant section of the ASA’s CAP code is section 2, which states the following:

  • Marketing communications must be obviously identifiable as such.
  • Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them (see rule 10.6).
  • Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context.
  • Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them “advertisement feature.

The second requirement makes it clear that the statement identifying the message as an advert can’t be hidden in, say, a webpage linked to from a tweet, and needs to appear in the body of the tweet itself. Nike argued that it had satisfied the “obviously identifiable” requirement by including a link to a Nike url and the “#makeitcount” hashtag, which was the tagline for a new Nike advertising campaign. Nike also argued that the two players were well known for being sponsored by Nike, and therefore their followers on Twitter were unlikely to be misled by the relationship between the footballers and Nike.

The ASA dismissed these arguments.

It considered that Twitter users will follow many users and will scroll through messages quickly. The ASA also considered that Twitter followers would not necessarily have been aware of the “Make it Count” ad campaign, and would not therefore associate the #makeitcount hashtag with Nike. The test under the Code is not just that the advert be “identifiable” but “obviously identifiable”. In the absence of anything obvious in the tweets to indicate that they were Nike marketing commuications, the ASA held that the Tweets breached the Code.

The Mars approach
In its decision on the Nike case, the ASA gave the example of the inclusion of a “#ad” hashtag as a way of identifying the tweet as a marketing communication.

This is exactly what Mars did in the Snickers tweets issuued by Ferdinand and Jordan, which each contained the “#spon” hashtag. In that case, the ASA accepted Mars’s argument that this was sufficiently prominent to make the tweet obviously identifiable as a marketing communication.

Comment
Whilst both of these cases involved major international brands and celebrities, the ASA’s rulings are relevant to all organisations regardless of size.

Social media is becoming an increasingly important marketing tool. If you are planning to promote your business using third party endorsements on social media then it’s essential that your communications comply with the CAP Code.

Under the CAP Code, it is the advertiser (not the endorser) that is responsible. It’s therefore also important that you either pre-approve the communications or ensure that your endorser has been given clear guidance on the format of messages being issued. Whilst there might not be much space for regulatory compliance wording in a 140 character message, as the ASA’s latest decision shows all it takes is three characters: #ad.

PS Just to rub salt in the wound, Rooney didn’t make even manage to achieve his resolution, with Manchester City taking the title. But Nike will be happy – the tweet got a quite ridiculous 2,200 retweets.


Twitter: @BrodiesTechBlog feed

June 2017
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