cips risk 2.0 january 2015.ppt speaker... · socialnomics / erik qualman • “we no longer have a...

Risk 2.0Social Media Engagement & The Law

Steve Kuncewicz, Head Of IP & Media

Who I Am & What I Do

Head Of IP & Media, Bermans

Intellectual Property & Media Lawyer; specialism in SocialMedia Issues

Commendation, Inaugural “Golden Twit Awards” 2009 forbest B2B use of Twitter & Winner in 2011 – Best CorporateIndividual

Winner, “Best Legal Entrepreneur”, Downtown ManchesterIn Business Mancoolian Awards 2014

Media Spokesperson on IP & Media Topics (FT, Times,Guardian, MEN, News Of The World, Liverpool Daily Post,Radio 2, Radio 4, Radio 5, ITV News, Sky News, BBCBreakfast)

Author, “Legal Issues Of Social Media” – Published July2010 and “Corporate Reputation in the Online World” –May 2011 (available via Amazon)

Further Reading(...Or Cures For Insomnia)

Digital Native(Geek Credentials)

(Allegedly) Manchester’s Most Followed Lawyer on Twitter(TBC…8000 Followers and Counting!)

4630+ Connections on LinkedIn

Legal Blogger for The Drum (when time permits..)

IP & Media Law Blog (see above!)

Commercial Editorial Board, LexisNexis

Co-Chair, Creative Pro Manchester

Honorary Solicitor, MPA

Director, Manchester Creative Studio

Ambassador, Forever Manchester

Trustee, NOISE Festival

Board Member, Rochdale Development Agency

The Undiscovered CountryWeb 1.0 to...?

It’s Just For The Kids, Right?

WRONG!

Social Media – State Of The World

Socialnomics / Erik Qualman

• “We no longer have a choice on whether we do Social & Mobile; the choiceis how well we do it”

• “World Populations” by User: 1 – Facebook, 5 – Whatsapp, 6 – Google+, 7– LinkedIN, 9 – Instagram, 10 – Twitter (China 2, USA 8)

• 50% of the World’s Population Under 30• 53% of Millennials would rather lose their sense of smell than technology• More people own a mobile device than a Toothbrush• Mobile & Social are merging, no longer “emerging”

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Social Media – State Of The World

Socialnomics / Erik Qualman

• By 2018, Video will account for 2/3 of Mobile Usage• Every second, 2 new Members join LinkedIN; age limit lowered to 13• Grandparents are the fastest-growing demographic on Twitter• What is being said about You? (Sentiment Analysis/Intelligence)• The average Person has an attention span of 7 seconds (Goldfish have 8)• Real-Time Marketing and “Newsjacking” is becoming more & more common for

Brands (PaddyPower), but what about the risks?• 4 Cs of Digital: Creating, Curating, Connecting & Culture• Wearable Tech. allows everything to be Real-Time?• Word Of Mouth > World Of Mouth• © 2015, Erik Qualman

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Social Media – State Of The Nation

• UK Population – 64.1 Million• 57.3 m Active Internet Users (89%; up 4%)• 38m Active Social Media Accounts (59%, up 6%)• 74.8m Mobile Connections – 32m (117% of Population); Active Mobile

Social Accounts (50%, up 7%)• Average Daily Internet Use Per User - 4 Hrs, 2Hrs via Mobile & 2Hrs

Social Media Use (Average Daily TV Viewing – 3 Hrs)• Total Number of Active Internet Users – 57.3m (89% of Population)• Total Number of Active Mobile Internet Users - 36.9m (58% of

Population)• Web Page Views – 58% on Laptops & Desktops, 27% Mobile, 15 %

Tablets

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Social Media – State Of The Nation

• Top Active Platforms in Population• Facebook: 43%, Twitter 19%, Whatsapp 17%, Google+ 12%, LinkedIN

9%, Pinterest 9%,, Instagram 8%, Snapchat 6%• Mobile Activity• Using Social Media Apps – 30%• Watching Videos – 24%• Playing Games – 17%• Using Location-Based Search – 15%• Using Mobile Banking – 24%• © 2015, WeAreSocial Guide To Digital, Social & Mobile in 2015

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Opportunity vs. RiskCompliance Vs. Engagement ?

The OpportunityPro & Cons

• You’re doing this already• Existing profiles• Move away from simply a Comms/PR

Role to active Brand/Mgmt.• Stakeholder-facing for engagement &

insight into processes)• Real-Time Connections• Universal Service Commitment -

Everyone of working age’ online by2015 (Maybe!)

• Revenue & Reputation Building

• “The Conversation That’s HappeningWithout You”

• Who do you trust to Tweet?• Negative & Skeptical Comments• Regulatory Sanctions - ASA• Buy-In from Management• A new Training Need• Consistency of Message• Maintaining “Personal Brands” v Firm

Brands• Online Conduct = Offline Sanctions• Legal Risks

Opportunity Risk

What Keeps You Awake At Night ?...And Should It?

Advertising Regulation – Online & OfflineThe Digital Remit

Advertising RegulationThe Digital Remit & Celebrity Endorsement

• ASA: Digital Remit as of 1/3/11• CAP Code applies to “Marketing Communications connected with the sale or

transfer of goods or services” online - Based on existing TM, © and Media Law• Applies to websites and social media messages on platforms that you don’t

pay for but do control i.e. Facebook, Twitter, etc• Concerned with Advertising which “misleads potential customers about true

nature of offer” – Must be legal, decent, honest & truthful• Few legal powers/sanctions - Self-Regulation• Online Sanctions more powerful – funded by Google• Can lead to wasted media spend, bad publicity & censure/adjudication or CMA

Action• Content judged on what Regulators think it says based on potentially ONE

complaint.• UGC – Substantiate testimonials and get permission to use them• Have an audit trail to back claims made• Falls under ASA remit if adopted in marketing• Covers SMS, E-Mail, Website Text & event Tweets• Handy option if infringement cases prohibitive…and may be faster!

Getting “Over” RegulationPlatform Rules

“Brand Ambassadors”“Flogging” A Dead Horse?

The Human Resource“We’re All Advocates Now?”

Employment

The Human ResourceANOTHER Policy For The Handbook?

• Don’t “go social” without a plan, either for what you’re going to say orwho you want to be saying it to

• Again, involve a Consultant or hire an Apprentice• You may want Staff to be advocates, but even if not you need to be

able to deal with what they say online that affects Business• Without a clear policy, very difficult to discipline with confidence; why

have an argument over “Gross Misconduct” when you can set it out?• “The Conversation That’s Happening Without You” – Brian Solis• Your Business may not participate actively, but it should be listening..• Again, all about managing risks – grievances (stakeholders,

employees or public) / vicarious liability / reputational damage / lossof business / drain on management time & loss of productivity

The Human ResourceWhen Good Employees Go Bad..

• Many ET claims based on Social Media fail..

• Teggart v Teletech UK Ltd - 2012• Claimant made comments on Facebook regarding female colleague’s sexual

promiscuity. Named Teletech in the posts• Harassment on Facebook sufficient to amount to gross misconduct. No defence under

Article 8 ECHR (right to a private life)• Dismissal fair & reasonable – no evidence on disrepute, but colleague harassment

serious enough to dismiss• Art. 8 ECHR right to privacy abandoned when posted on FB & Art 10 right must be

exercised responsibly

• Preece v JD Wetherspoons Plc - 2010• Claimant was abused by rude customers, & received abusive phone calls.• In response, posted negative comments about customers on Facebook which were

seen by a customer’s daughter and reported• Preece dismissed for gross misconduct• ET held dismissal to be fair• NOTE – employer’s policy was very clear on social media use & examples of gross

misconduct


• Pay v Lancashire Probation Service - 2004• Claimant worked with sex offenders and victims and had put photographs online of

himself participating in BDSM activity• Dismissed for SOSR (“some other substantial reason”)• 5 potentially fair reasons for dismissal under Employment Rights Act 1996 –

Conduct / Capability / Redundancy / Breach Of Statutory Restriction / SOSR• SOSR subject of extensive litigation – circumstances for use hard to define• Pay’s activities would potentially bring Service into disrepute.• No protection under Article 8 ECHR (right to a private life) as the pictures were

posted online

• Crisp v Apple Retail - 2011• Apple shop employee critical about Apple products on Facebook• Employer was informed and Employee removed comments.• Dismissal held to be fair – Apple’s induction and policies embraced emphasis on

company image• No expectation of privacy even though FB page only accessible by Friends; no

control over copying & going “viral”


• Taylor v Somerfield Stores Ltd• 20 second clip posted on YouTube showing a person in uniform being hit with

plastic bag• Dismissed for gross misconduct as a result of clip bringing business into disrepute• Dismissing manager did not view clip or know that it only had 8 hits, 3 of which were

by management• ET held the dismissal to be unfair – genuine apology, no evidence of genuine

damage to reputation and disproportionate (harsh) sanction

• Gosden v Lifeline Project Ltd• Claimant sent a sexist and racist email to a former colleague which entered the

HMPS systems, marked ‘you have to pass this on’.• Dismissal held to be fair – sending email to the employer’s biggest client could

easily damage reputation• E-Mail sent from Home, and outside of Working Hours to Personal Address of

Former Colleague, who forwarded it on and it got back to Lifeline• Gosden viewed as being unable to continue working in Prison Service• Held to have been obvious that E-Mail was designed to be forwarded, not a

personal message


• Successful ET Claims

• Stephens v Halfords PLC• Claimant created a Facebook page in protest to Halfords’ proposed change in working

hours, in breach of Social Media policy• Removed the page when the policy was drawn to his attention, but was still dismissed• Held by the ET to be unfair

• Whitham v Club 24 t/a Ventura• ‘Exemplary’ employee posted mild derogatory comments on Facebook – ‘I work in a

nursery, and not with plants’• Dismissed – comments could damage relationship with VW• Dismissal held by ET to be unfair

• Flexman v BG Group plc• HR Executive ticked the box on LinkedIn confirming he was ‘interested in career

opportunities’• Disciplined when he refused to remove it and resigned• Brought a constructive dismissal claim – and succeeded


• Smith v Trafford Housing Trust - 2012• Employee FB page identified himself as Manager of Employer• Accessible by Friends & Their Friends – including 45 colleagues• Smith posted link to BBC News story on gay marriage with comment

“equality too far”• Work colleagues questioned his position & Smith asked why non-religious

couples would want to get married in Church before stating that Biblespecifically dealt with marriage between men and women

• Employers started disciplinary proceedings and demoted rather thandismissed as a result of long service

• Smith appealed & then claimed breach of contract - successfully• FB profile found to be inherently non-work related; medium for personal or

social (rather than work-related) information and views

Policy of Truth?When Good Employees Go Bad..

• Is a Policy worthwhile?• YES, but not in isolation• Having a policy is hugely helpful, but not be-all and end-all• Online conduct as serious as offline – identify when personal use is affected• Should be non-contractual• Should prohibit conduct which brings Employer into disrepute, both in and out of the

office & emphasise privacy settings• Deal with ownership of accounts, access and obligations• Can’t force to hand over username & password to private account• Have advocates set up work-only profiles?• Set clear standards and give best practice examples – What’s “personal” and what’s

“Business” and what’s acceptable in either case?• Monitoring & Interception a separate issues – DPA & RIPA (needs consultation &

communication)• Emphasise that breaches constitute misconduct & in some cases gross misconduct

and can lead to discipline/dismissal• Emphasise need to seem guidance if in doubt & lines of responsibility


• Don’t presume policy will always bite in respect of all conduct outside work• In the absence of a clear work-related context, dismissal likely unfair• If arguing disrepute or reputational damage, ET won’t necessarily find that if

policy has been breached, Employer’s reputation automatically damaged or thatit has been already done

• Likely that future decisions will draw distinction between conduct of lower-levelemployees and those of Managers re: Reputational Damage

• Consider context & potential audience as well as content• Investigate risk of actual damage and have supporting evidence (sentiment

analysis)• Is dismissal within the band of “Reasonable Responses”• Cases emphasise need for a communicated policy & consultation• Include use of smart phones and tablets – not just company hardware: BYOD• Highlight link to discrimination, harassment and whistleblowing policies in

Handbook• Have clear disciplinary sanctions for breach• Enforce, or it’s useless


What goes in the Policy?

•Emphasis on protecting Employer Reputation•Respect IPRs & Confidentiality•Respect third parties – Colleagues / Clients / Stakeholders•Respect privacy & DPA obligations•Comply with contractual obligations & existing policies•Comply with third party website Ts & Cs•Avoid sensitive non-work topics (sex, politics, religion, race) in Business use•Limit postings to areas of knowledge/expertise•Don’t say anything in name of business without clearance•Include a disclaimer in profile (only goes so far)•Correct errors promptly & publicly•Don’t get into arguments / flaming•Report any potential issues ASAP


What do you DO with the Policy?

•Implement it•Communicate to Staff•Train on its content – during Induction•Review & update regularly (with external input)•Respond to breaches promptly•Engage disciplinary procedure where appropriate•Consider ownership & access to confidential data – Hays v Ions &•Social media content may be disclosable as evidence•Some insurance policies won’t cover liabilities arising from use of Social Media•Remember - Employees have right to participate in legal, off-duty, off-site conduct/ whistleblow on illegal activity / limited right to privacy & freedom of expression(Art 8 & 10 ECHR)

The IP AddressIntellectual Property & Social Media

Copyright & “Wrongs”All’s Fair (Dealing)? & Content

• Misconception – If it’s online, it’s free to use• Getty may disagree!• Sharing content on Platforms covered by Terms Of Platform Use, but when you

remove it & re-use ask permission (better than forgiveness…)• Most Platforms take down first & ask questions later• Most Hosts & ISPs do the same (E-Commerce Immunity)• Misconception – The Myth of “Crediting”• Fair Use Exceptions are VERY narrow – most Bloggers will give permission in

exchange for exposure• Is a Tweet a protectable “work”? - No case as yet, but NLA v Meltwater suggests it

may well be..• Linking is lawful, unless Copyright owner hasn’t authorised content to be made

freely available or has put behind a paywall which you circumvent (Svensson vRetriever Sverige [2014])

• Link-Sharing: Can contain Headlines, which can be “works” in their own right..• Browsing the web without downloading is NOT infringement, it’s temporary copying

– PRCA v NLA [2014])• Making available – Having images of infringing copies on website likely to be

authorisation or communication to public, but what’s quantum?

Copyright & “Wrongs”All’s Fair (Dealing)? & Content

Brand XTrade Marks – How Far Can You Go?

• Interflora v M & S [2013]• M&S ran Adwords campaign to display ads for its flower delivery service when

“Interflora” searched for; created a sponsored link to Interflora• If use of the Interflora Trade Mark led users to believe, incorrectly, that M&S’

service was part of Interflora’s network, then the Trade Mark’s function in“indicating origin” would be damaged and infringed

• M&S’ ads did not enable reasonably well-informed & attentive internet users towork out (or only with difficulty) if the service referred to in the ads/sponsored linkscame from the Trade Mark owner, a business connected to it or a third party

• Court – Keyword Advertising is not inherently objectionable from a TM perspectiveand encourages competition

• To avoid risk of infringement, ensure that keyword ads enable consumers toidentify whether their services or goods are what they were looking for rather thanthose of a third party

• Lush V Amazon – Use of “Lush” in Google Sponsored Ads AND on Amazon’s ownplatform was infringement – included references to “Lush” products but directed tocompetitor products; Consumers wouldn’t expect Amazon to advertise Lushproducts for purchase if unavailable and average consumer wasn’t able toascertain without difficulty when goods on Amazon were not Lush Products


• Most platforms have TM & Impersonation Policies – Concerned with “misleading orconfusing” content

• Take Down first & ask questions later• BUT, Parody accounts permitted on Twitter and others• Simple issue re: “Use in the course of trade?”• What about Hashtags? – No cases yet, but defensive registrations will certainly help• Move fast if Hashtags are going to be part of Branding long-term, but will they be

obsolete by the time you get past the IPO?• Use of a Hashtag alone unlikely to infringe• ICANN – Use of a Hashtag/Identifier in a Tweet may not demonstrate unregistered

rights (La Bomba Ibiza)• Cybersquatting – An option, but is it really an abusive registration or a reputation

management issue?• Is a domain being used as a hostage to fortune or “instrument of fraud”?• Hosts’ & ISPs’ Terms of Use – Good initial point of contact• Glee Club v 20th Century Fox [2014] – 2012 Tweet crucial in supporting finding that

there was a likelihood of confusion• Do Twitter Feeds give you contemporaneous, time-stamped, unprompted, unfiltered

evidence of confusion or association? How will this evidence be assessed (especiallyif brand owners go looking for it)?



• Know your platforms, AND their Ts & Cs• Often the quickest form of redress• Impersonation/IP Policies can lead to take-downs, but usually

needs to be “misleading”• Impersonation prohibited, Parody may not be• Obtain Verification / Blue Ticks where possible• E-Commerce Immunity• Plan (and monitor) in “Peace Time”• Sentiment Analysis may tip you off to what’s coming next• Create your own conversation and Hashtags• Hashtag hijacking not TM infringement (Yet!)• Register your key brand elements and use them• ICANN – Use of a Hashtag/Identifier in a Tweet may not

demonstrate unregistered rights (La Bomba Ibiza)


• Know Your Enemy – Motley Fool• Online Infringement = Offline Consequences• Beware the “Streisand Effect”• How far will you go? – Take-Down Alone or Pursuit?• Cost v Benefit (Intangible & Tangible)• Know Yourselves – who “owns” Social Media?• Marketing & Compliance = Reduced Risk• Have Ts & Cs for Guest Bloggers/Contributors & for UGC• Keep your own House in Order and have policies for use of

3rd Pty. IP in your own feeds• Register Defensively• Have a Social Media Policy

I Hate Ryanair (!) & Squatters

I Hate Ryanair! & Squatters

• Cybersquatting or just a Hate Site?• What’s the intention behind the site?• Have they used a brand to generate income from Goodwill?• “Instruments Of Fraud”• ICANN or ICANN’T?• Is Defamation a better option? (Serious Harm/S.5)• Can you show “Serious Harm”?• What about Malicious Falsehood?• Can you tie the comments into a Personal Attack? If so,

“Harm” to an individual may be a better option• Again, beware the “Streisand Effect”• Playing “Whack-A-Mole”• Register Defensively

DefamationYou Vs. Media In The New World

• Does the content affect reputation?• What’s the meaning in 140 characters?• Is there a defence?• Online Content = Offline Consequences• What is “serious harm”?• Corporate / Individual “Harm”• New Approaches – S.5• E-Commerce Directive still an option• Talbot v Elsbury• Cairns v Modi• McAlpine v Bercow• Innuendo – Intention not an issue; who’s the audience and what would

they know?• Is there a threshhold re: Exposure or Following for Cost/Benefit

Analysis?• Will it go viral?• Again, beware the “Streisand Effect”

DefamationYou Vs. Media In The New World

Content WarningSocial Media & Criminal Law

R v Twitter

The E-Commerce ImmunityTake-Down And Party Or Flawless Victory?

When Social Goes “Anti”Case Studies In The Wider World

SummaryOpportunity > Risk

Thank YouFor Listening

Contact DetailsEngage at will!

E-Mail [email protected] @stevekuncewiczLinkedIn uk.linkedin.com/instevekuncewiczFacebook www.facebook.com/steve.kuncewiczGoogle + Google it!Skype stevekuncewicz

cips risk 2.0 january 2015.ppt speaker... · socialnomics / erik qualman • “we no longer have a...

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