UK: Seek Shelter From Social Sticks And Stones

Last Updated: 11 October 2017
Article by Ruth Burstall, Sabrina Tozzi and Birgit Clark

Developing a social media policy is essential for companies to navigate a digital world full of legal, IP and reputational risks.

Social media use and access is now a cornerstone of our daily routines.

Not simply the preserve of millennials and Gen Z-ers, social media is how people communicate, check the news, share adorable dog videos, and buy stuff. This means that for most firms, having a social media presence is a business imperative.

Although this fast-developing marketing channel has brought many opportunities for businesses' consumer engagement, its specific features pose risks to businesses, stemming both internally and externally.

These can be broadly split into two categories: risks posed by the company and its staff's social media presence, and risks posed by third parties' use of social media relating to the company.

These risks are boosted by certain features inherent to social media. As it is fast-moving, global and collaborative, it follows that errors or criticisms of a business likely have a wide audience, and will often leave a permanent record.

Company risks

Unauthorised or uncontrolled social media posts present several risks to a company. For posts made by a company, conveying the right brand message is critical, as any mistakes will be highly visible to consumers and rivals.

Social media opens a dialogue between companies and their consumers. Users can and do offer their views, feedback and opinion on companies' brands, marketing and products, potentially leading to a loss of control and damage to the brand image.

Marketing on social media is subject to advertising laws and regulations, which often extend to endorsements by celebrities, bloggers and, in some cases, even consumers.

It is therefore vital to ensure companies are aware of advertising regulations and how they apply to social media. Likewise, it is important not to misrepresent a connection between your brand and a celebrity, which might prompt legal claims around image rights.

"Marketing on social media is subject to advertising laws and regulations, which often extend to endorsements"

Social media can also raise the risk of the inadvertent disclosure of sensitive or confidential information. This particularly applies to regulated industries or public companies where certain information must be disclosed first in a regulatory filing, shareholder announcement or press release.

A company's legal duties regarding the collection of personal data extends to data collected on social media. Restrictions on this are tightening under the EU's General Data Protection Regulation (GDPR), due to take effect next May.

Care should be taken about sharing consumer details, for example around competitions, and protecting consumer or employee data obtained via social media.

Third-party risks

Third parties may criticise, spoof or infringe a company's intellectual property on social media by selling counterfeit or lookalike products, or passing themselves off as the real thing. Social media accounts may also be used for phishing or other types of cyber crime.

Intellectual property

Any content protected by intellectual property (IP) rights remains so if it is shared on social media. If used without consent, posting third-party content still infringes on the rights of IP owners or individuals featured in the content.

As a rule of thumb, if you do not own an image or have a licence to use it, check whether you can obtain permission to use or share it.

Social media terms of service in many cases allow users to share and comment on content within a given platform. However, posting content across social media often means that the terms and conditions of the respective platform will affect copyright protection.

For example, while the poster will retain copyright, they may automatically grant the respective platform a royalty-free, transferable, sub-licensable, worldwide licence to use the content posted.

Another potential copyright issue for social media is sharing screenshots of images, such as those taken from messaging apps like Snapchat.

Images with enough originality may be copyright protected and if no statutory defences apply – such as review, criticism, and implied consent – sharing such images without the original poster's consent can be copyright infringement.

If the shared images are of a sexual nature this may also result in criminal prosecution.

Equally, using only a few seconds of a piece of music online may be copyright infringement, since the test for infringement is whether a substantial part of an original work has been copied. Thus, if a qualitatively significant part of a song is copied, such as a catchy chorus, you may have infringed copyright.

Trademarks

Social media comments frequently include trademark or brand references. Where such online comment uses a registered trademark 'in the course of trade' without permission, this could be trademark infringement.

However, 'honest use' of a trademark in a descriptive manner, or use that is not 'in the course of trade' will not be infringing. Using a third-party brand online could also amount to passing off, and unfairly comparing your brand against another could amount to unfair comparative advertising.

Spoof and parody

What about 'spoof accounts' and parodies? The 'parody exception' relating to copyright under UK law, which was introduced in 2014, says that 'fair dealing in relation of a copyright protected work for the purposes of caricature, parody or pastiche does not infringe copyright in the work'.

Based on Article 5(3)(k) of the EU Information Society Directive, this concept has been broken down by the European Court of Justice (CJEU), which set out two criteria for its application.

"A parody should be close enough to evoke an existing work but must remain noticeably different from it"

First, a parody should be close enough to evoke an existing work but must remain noticeably different from it, and second, it should express humour and mockery.

In contrast, EU trademark law does not specifically provide for a parody exception. Recital 21 of the Directive (EU) 2015/2436 says that 'use of a trademark by third parties for the purpose of artistic expression should be considered as being fair as long as it is at the same time in accordance with honest practices in industrial and commercial matters'.

The CJEU has clarified that use of a trademark will not be in accordance with 'honest practices' if the use discredits or denigrates the mark.

Importance of policy

The principal reason for having a social media policy is to help mitigate the risks arising from company or employee use of these channels.

Due to the fast-moving, open and collaborative nature of this media, it is generally not possible for the legal team – and often not even the wider business – to monitor and pre-approve social media interactions.

Corporate policy

At a corporate level, having a style guide for social media posts helps ensure that content posted by a company conveys the right brand message. These guidelines might recommend avoiding sensitive topics such as religion and politics.

Despite the inherent speed of social media, it is advisable to moderate outgoing content before it is posted. The policy should therefore aim to ensure that marketing content complies with advertising laws and regulations.

Moderating incoming content such as customer comments is trickier, as the removal of negative comments can draw accusations of censorship.

It is better to have a strategy for dealing with customer dialogue so that responsible staff are polite and know to disengage at the right time, without getting into arguments.

Employee policy

For staff it may not be necessary to have a separate social media policy if there are appropriate restrictions and obligations set out in the staff member's employment contract.

However, in many cases these will be general obligations, lacking the detail that can help inform employees about how their employer expects them to behave on social media, for business or pleasure, and what actions could be taken against them for breaking the rules.

Scope

Although policies will vary according to business needs, they should set the parameters of social media activity and the guidelines for engagement.

In particular, they should set out the disciplinary consequences of publishing inappropriate comments and what online conduct will be considered inappropriate.

For example, a social media policy should make clear how seriously the employer treats reputation. To reduce the risk of reputational damage for non-work related comments made by staff, it should contain clear instructions to ensure that such comments cannot be linked to the employer.

"A social media policy should make clear how seriously the employer treats reputation"

A clear, detailed social media policy also allows an employer to control staff use of social media sites relating to the business.

The policy can set out rules for connecting with customers on sites such as the professional network LinkedIn and the type of business information that an employee can post online.

A social media policy should also:

  • Include a broad definition of 'social media' to encompass all possible forms
  • Set out who it applies to. In addition to employees, consider including contractors or others whose communications could reflect on the company
  • Include express provisions as to whether and to what extent staff may access the internet or social media during office hours
  • Describe the circumstances in which an employee's use of social media may be monitored – justifying the benefits to outweigh any possible downsides
  • Address what employees can and cannot do. For example, do not connect social accounts to work email addresses, do not use social media for internal or confidential communications, and do not badmouth clients, colleagues or the company
  • Highlight legal risks such as copyright and trademark infringement
  • Include clear examples of conduct that may harm firm reputation as well as discrimination, harassment, bullying, defamation, breach of confidence or intellectual property right infringements, and how the employer may be liable for an employee's conduct
  • Delineate clearly as to when an employer can be referenced on social media.

Where employees within an organisation are required to use social media as part of their job – for example, in marketing or recruitment – it makes sense to consider specific guidelines for the use of social media sites in a business context.

This should bear in mind confidential client matters or sensitivities. This may also include internal guidance on a quick 'take down procedure' and conflict checks.

Update and enforce

Social media will continue to evolve and it is important to regularly review and update a social media policy in line with changes in the law, technology and business practices.

Further steps should include training and educating employees and line managers on the policy, and making it easily available – for example, on a firm's intranet. Consistent enforcement and the 'tone from top' will all lead to a good social media culture.

Ruth Burstall is senior associate in IP, Sabrina Tozzi is associate in IP, and Birgit Clark is EMEA IP professional support lawyer, all at Baker McKenzie

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.