Social media has presented lawyers and communicators with new challenges as they seek to protect reputation in a social age. This presentation accompanied our recent webinar on the subject, with Insignia’s managing director Jonathan Hemus and Magnus Boyd, legal director at Hill Dickinson.

1. Social media and reputation management:
a new legal and communication landscape
June 2014

2. Jonathan Hemus
Insignia Communications
Magnus Boyd
Hill Dickinson
Introductions and welcome

3. Today’s webinar
• A new landscape
• Recent legal developments
• Managing third party comment
• Managing “official” online content
• Managing online content posted by employees
• Legal and communication teamwork
• Questions

4. A new landscape
Image from Freshfields Bruckhaus Deringer LLP’s report “Containing a crisis: Dealing with corporate disasters in the digital age”, November 2013

5. A new landscape:
Speed of dissemination - legal implications
“we recognise that as a consequence of modern technology
and communication systems any such stories will have the
capacity to “go viral” more widely and more quickly than ever
before. Indeed it is obvious that today, with the ready
availability of the world wide web and of social networking
sites, the scale of this problem has been immeasurably
enhanced, especially for libel claimants.... In our judgment...
this percolation phenomenon is a legitimate factor to be taken
into account in the assessment of damages”
Cairns versus Modi

6. A new landscape:
Speed of dissemination - communication
implications
• Scenario planning – re-visit your reputational risk
assessment in light of increased risk & likelihood of crisis
• Capacity development – speed of social media necessitates
the creation of capability and resources beforehand
• Never compromise credibility - speed is desirable, accuracy
is essential

7. A new landscape:
The ability to publish anonymously
"I have no hesitation in finding that the balance
weighs heavily in favour of granting the relief sought.
To find otherwise would be to give the clearest
indication to those who wish to defame that they can
do so with impunity behind the screen of anonymity
made possible by the use of websites."
Judge Owen, Totalise plc versus Motley Fool Ltd

8. Recent legal developments

9. Recent legal developments
• Limitation period for online publications
– One year time limit
• UK Defamation Act 2013
– Procedure for taking down defamatory material

10. Recent legal developments
• The right to be forgotten (EU ruling)
– Right to removal of “irrelevant, outdated or otherwise
inappropriate content”
– Only applies to search engines (not original publisher)
– Only applies in EU
• Publicity orders
– Successful libel claimant can request that defending
company published their wrongdoing online

11. Recent legal developments:
Publicity orders – communication implications
• Pro-active reputation management programme – build
reputational credit and strong relationships
• Communication planning for the legal process – shape
the narrative rather than be a victim of it

12. Applying copyright laws to social media
• To re-publish copyrighted material without a license or permission is a
breach of copyright
• Copyright attaches to any original work e.g. a press release, slogan or
catchphrase
• Defence of 'fair use' applies when citing a limited amount of the
material for criticism or reporting current events
• Material may still be copyrighted even if there is no copyright symbol
• Just because the work has been posted on another website does not
mean your re-publication would not be in breach
• No defence if you are not intending to use the work for commercial gain
• Giving the author a credit is no defence

13. Nestle versus Greenpeace

14. Nestle versus Greenpeace: learnings
• Aggressive moderation can make a bad situation
worse – train and rehearse
• Take legal and communication advice – just because
you can take legal action doesn’t mean you should
• Scenario plan from the activist’s perspective

15. Managing third party comment

16. Managing third party comment:
Legal options
• Identify source of attack
• Request immediate removal of content
• Sue in libel
• Act quickly to remove defence of “innocent
dissemination”

17. Managing third party comment
• Use social monitoring tools to track the source
of comments
• Actively moderate content
• Create a terms-of-use policy
• Remove inappropriate material
• Decide whether or not to explain removal

18. Managing third party comment:
Communication implications
• Reputational risk audit: identify and prioritise likely risks and
issues
• Stakeholder mapping: identify and analyse friends & foes who
can influence reputation
• Scenario planning: consider how key risks might play out
• Behaviour change: change the way you operate to reduce the
likelihood of criticism
• Perception change: reputation management programmes seek to
alter the way stakeholders view your organisation
• Contingency planning: issues/crisis management procedures,
people, training and resources

19. Managing “official” online content

20. Managing “official” online content
• Prevention is better than cure: do not publish anything
that you cannot verify as true
• Every re-publication gives rise to liability: no safety in
publishing something that someone else has published.
• Don’t try to circumvent the law with thinly disguised
references
• Be cautious when commenting: Any statement must
clearly be ‘comment’ with a factual basis, objectively fair
and in the public interest

21. Managing “official” online content:
Communication implications
• Don’t ignore the opportunity that social media provides with an
overly risk averse approach

22. Managing online comment posted by
employees

23. Social media policy:
Legal guidelines
• Course of employment
• Guidelines for posting
• Unacceptable content:
– Anything obscene, defamatory, private
– Anything that breached intellectual property rights (eg
trademarks and copyright)
– A catch-all like ‘anything that would bring the organisation
into disrepute’
– Anything that you know to be false
– Anything that would disrespect or breach the rights of fellow
employees

24. Social media policy:
Making it real
• Create, brief, embed

25. Legal and communication teamwork

26. Legal and communication teamwork
• Different expertise, same objective
• Best advice – CEO to decide
• Trust and respect based on pre-existing relationship
• Joint involvement in planning/training:
– Reputational risk assessments
– Scenario planning
– Crisis simulation exercises
• Pre-agree approval process

27. Protecting your reputation from a social media crisis

28. Contact details
Jonathan Hemus, Insignia Communications
Website: www.insigniacomms.com
Email: jonathanhemus@insigniacomms.com
Twitter: @jhemusinsignia
Phone: +44 (0)786 832 9102
Download our report here:
http://insigniacomms.com/resource/

29. Social media and reputation management:
a new legal and communication landscape
June 2014