Transcript PPA social media slides

Jo Farmer, Partner
Jonathan Coad, Partner
Lewis Silkin LLP
Overview
• Intellectual Property rights on social media
• Native advertising and regulation of editorial
• User generated content
• Press complaints in context of social media
IP and Social Media
Can you use third party IP on social
media?
• Million dollar question: can I take other people’s
content from social media and use it myself?
• Bad news: Not unless you have a licence to do so
• Good news: You will have a limited licence to use that
content in specific ways on the same platform,
depending on the platform terms of service from
which it comes.
Can you use third party content on
social media?
• BUT
Just because you see individuals doing it across the
world– should a commercial organisation do it?
Be wary of editing, not crediting, overlaying with brand
IP
What if the third party content itself infringes IP?
> Brand is FAR more likely to be sued than an
individual for infringing content
Remember “image rights” (or rights under laws of
passing off) are not the same as copyright – nothing in
the platform terms gives you permission from the
individuals featured in an image or video.
New York Times, 4 January 2014
Samsung and “that Oscars selfie”
Who owns a hashtag, a meme, a viral idea...?
Controlling social media output
Who owns a tweet?
• The copyright owner will be:
the individual who wrote the content; OR
 their employer (if it has been written as part of their job in the
course of their trade); OR
 a third party to whom they have assigned the copyright
Who owns a tweet…?
Who owns a tweet…?
Native advertising:
regulation on social media
The new editorial landscape
Transparency: the law
• If it is a marketing communication, you must be
transparent about the fact that it is marketing
•
Consumer Protection from Unfair Trading Regulations 2008
(CPRs)
 General requirement not to mislead by act or omission
 Must disclose if you are paying
for editorial content or advertorial
 Can’t pose as a consumer
 Possibility of criminal sanctions
 First ever case in Dec 2010 –
Handpicked Media
Bloggers: Handpicked media (2010)
Handpicked media: disclosure
Groupola.com – March 2011
Groupola.com
• Employees falsely posing as consumers to send
promotional updates about their company = criminal
offence
• Employee published unidentified positive comments on their
Facebook page, including:
“Lets face it…if they offer you the same deal in a few
weeks time, you will be back to try again, regardless of
what you think of them now”
“I say fair play!…and no - I don't work at Groupola”
• Undertakings given not to make statements falsely
representing that author is a consumer and to give
prominent disclosures in future
Transparency: Guidance and self
regulatory codes
• CAP Code
Marketing communications must be obviously identifiable
as such
Use #ad?
Penalties for non compliance;
> Enforced by Advertising
Standards Authority
> Penalties are non financial
> Adverse publicity
> Legal backstop: Trading
Standards
Bloggers
• 19 March 2014: New CAP Guidance on bloggers:
Content is only within ASA remit where:
> Bloggers are paid AND
> Brand has editorial control
Blogger outreach programs therefore not covered by ASA, eg
> Sending free samples for review
> Journalists going on all paid for trip to review new product
PROVIDED brand does not have editorial control
If brand does have control over content, then need to signpost the
material as advertising
• Contrast with CPRs (and IAB/ISBA guidance):
Need to disclose paid for editorial content – see Handpicked Media
But, likelihood of enforcement by Trading Standards?
Native advertising
• “Native ads mimic form and function of the context
they are viewed in; they are “native” because they are
‘at home’ in their surroundings”
Native advertising : Outbrain (ASA)
Native advertising: new buzzword, same rules
• Where need to signpost as “Advertising” or “Sponsored
Link”:
Do signpost the status, clearly and prominently, and
make sure disclosure works on all devices and
platforms
Don’t rely on scrolling , hyperlinks, or explanations
confined to the landing page
Tweets about advertorial need to clarify that the
destination is advertorial, not editorial
Sponsored search results must also be clearly labelled
Brand ambassador tweets and
transparency
Nike/Rooney 2012 v 2013
Rooney – average tweets
Rooney/ Nike 2012
• Complaint that tweet wasn’t obviously identifiable as a
marketing communication
• Nike’s defence:
followers of Rooney and Wilshere were likely to know that
they were sponsored by Nike?
The Nike URL and strapline should make it clear that tweets
were marketing?
• ASA disagreed:
Ads must be obviously identifiable as an ad
Nothing in the tweet to indicate it was an ad. Suggested use
of #ad
Rooney/Nike 2013
• Contrast between the average Rooney tweets and
this promotional tweet
• ASA considered that the wording of the tweet in
addition to @NikeFootball and #myground meant that
the tweet was obviously identifiable as marketing
• Prominent use of picture
• Not upheld
Thank you
Jo Farmer
Partner
[email protected]
020 7074 8111