Presentation at Board2020 on 23 March 2012

1. Look before you Tweet
Managing the Legal Risks of
Social Media and Social Networking
for Business
23 March 2012
Roger Bull
Andrew Tibber

2. Introduction
Commercial Law Issues – Andrew Tibber
Employment Law Issues – Roger Bull
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

3. Commercial law issues
Advertising Laws and Regulation
Anti-Social Networking
Copyright
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

4. Advertising Laws and Regulation
Advertising Standards Authority (ASA) - UK’s independent regulator
CAP Code on Non-Broadcast Advertising, Sales Promotion and Direct
Marketing
Marketing communications should be “legal, decent, honest and
truthful”
“Non-Broadcast” extends to advertising and other marketing
communications:
- on company website or other “non-paid for space online” under
company control
- directly connected with the supply or transfer of goods, services,
opportunities or gifts
- in user-generated content if “adopted and incorporated” within own
marketing communications
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

5. Advertising Laws and Regulation
Marketing communications should be “obviously identifiable as such” (r 2.1)
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

6. Advertising Laws and Regulation
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

7. Advertising Laws and Regulation
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

8. Advertising Laws and Regulation
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

9. Advertising Laws and Regulation
Offences:
- Consumer Protection from Unfair Trading Regulations 2008
- Business Protection from Misleading Marketing Regulations 2008
Enforced by the Office of Fair Trading
Handpicked Media (2010) – commercial engagement of bloggers
OFT identified infringements under CPUTR 2008:
- failure to disclose material information that the promotion had been
paid for (reg 6)
- use of editorial content to promote a product without making clear
that Handpicked Media had paid for the promotion (Sch 1, para 11)
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

10. Anti-social networking
Monitor, evaluate, identify and remedy
Is it libel or “saloon bar moanings”? Substantial harm?
Could action be counter-productive?
Can you identify the author?
Self-help: Does the host have a reporting procedure?
Is there a threat of violence?
Consider your own liability for hosting defamatory content
Remedy – be careful what you wish for
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

13. Copyright
Copyright subsists in original literary, dramatic, musical or
artistic works (CDPA 1988, s 1)
Newspaper headlines/extracts are capable of being protected
by copyright
Copyright in a work is infringed by a person who copies the
whole or a substantial part of the work without the licence of
the copyright owner
(s 16)
Fair dealing for the purpose of criticism, review and news
reporting is permitted provided accompanied by sufficient
acknowledgement (s 30)
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

14. Copyright
Re-tweets
Publication of links
Deep-linking
Pinterest
Ownership of UGC
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

15. Employment law issues
- What is social media?
- Employment law risks
- How to manage the risk
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

16. Introduction
What is social media?
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

17. Introduction
Why are there issues for business?
- conflict between business opportunities and
risks
- positive use of social media
- legal risks of social media
- technology ahead of the law
- blurring the line between the personal and the
professional
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

18. The internet and social media
One in three on the planet use the internet
Over two billion people
Over 800 million Facebook users
1 in every 6 Internet pages viewed in the UK is a Facebook page
200 million Twitter users
Linkedin reached 120 million users in 2011
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

19. Social Media – Employment Law Risks
Employers’ Use
Pre-employment vetting
- Data Protection Act/Human Rights
- Discrimination
Verifying absence
- Data Protection
- Trust and confidence
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

20. Social Media – Employment Law Risks
Employees’ (mis)use
- Vicarious liability
- Misconduct outside of workplace
- Cyber bullying and harassment
- Damage to brand/reputation
- Cyber-slacking
- Breach of confidentiality
- Breach of restrictive covenants
- Unfair dismissal
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

21. Social media policy - ensuring
compliance
Have a stand-alone policy
Inter-relation with other policies:
- IT
- confidentiality
- code of conduct
- anti-harassment/bullying
- equal opportunities
- data protection
- disciplinary
- grievance
- recruitment
Clear consequences for breach (Preece v
JD Wetherspoons)
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

22. Social media policy – Why bother?
To set out your expectations
To provide guidelines on acceptable use
To confirm who is covered
- employees and contractors
- in and out of work
To ensure compliance with DPA
To support remedial action
To protect the company
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

23. Social media policy - enforcement
Policy is only as good as enforcement
- ensure widely available and understood
- monitor
- take action to enforce
- be consistent
Introduce training
Ongoing review
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

24. Social Media: Conclusion
Significant business opportunities
Significant business risks
Governance role to ensure risks are managed
The Solution: A Social Media Policy
Look Before you Tweet: Managing the Legal Risks
of Social Media and Social Networking for Business

25. Lookpresentation gives general information only and isadvice. We dotonot accept any liability to anyonethe law. Although we content. care
This Before you Tweet: Managingintended be an exhaustive statement of
over the information, you should not rely on it as legal
not the Legal Risks
who does rely on its
have taken
of Social Media and Social Networking for Business