Brands & Social Media AIPPI Hyderavad Saturday 15 October 2011 Jane Mutimear Partner Bird & Bird LLP Jane. mutimear@twobirds. com
Welcome to the Social Media Revolution © Bird & Bird LLP 2011 page 2
Social Media is about People and so is your Brand © Bird & Bird LLP 2011 page 3
‘Your brand is what people say about you when you’re not in the room’ It always has been – ever since the concept of branding first began © Bird & Bird LLP 2011 page 4
‘Your brand is what people say about you when you’re not in the room’ But now – it’s so much easier for them to share what they think! © Bird & Bird LLP 2011 page 5
6 ‘Types’ of Social Media ● Social Networking Sites – e. g. ● Blogs & Microblogs – e. g. ● Content Communities – e. g. ● Collaborative Projects – e. g. ● Virtual Game Worlds – e. g. ● Virtual Social Worlds – e. g. © Bird & Bird LLP 2011 page 6 Typology by Kaplan and Haenlein, Business Horizons. Vol 53, Issue 1, 2010
How brands are embracing social media ● Social media enables consumers to very easily share what they think about your brand with a mass audience ● It also allows brand owners to listen to what consumers are saying and to engage with them in new ways ● Providing new channels for communicating with customers and potential customers - and new channels for sales ● Difficulties: • Rapidly changing landscape – needs continual monitoring and • • ongoing learning Approach and tone – any problems are broadcast far and wide rather than kept one to one! Evolution of control – from ‘your’ brand to ‘user generated content’ © Bird & Bird LLP 2011 page 7
How brands are embracing social media © Bird & Bird LLP 2011
How brands are embracing social media ● From ‘Dell Hell’ in 2005 when journalist Jeff Jarvis was joined by countless other dissatisfied customers to create a ‘blog storm’ - which did very real damage to the brand’s reputation world-wide ● To #1 in the 2011 Top 100 Social Brands* ● Over 40 national Facebook profiles worldwide – and the most popular business brand on China’s top social networking site Renren ● Generating US$15 m revenue through deals promoted via its 1. 57 m @Delloutlet followers on Twitter alone © Bird & Bird LLP 2011 page 9 *Top 100 Social Brands, released by Headstream in March 2011
What makes Dell so good? ● They have a Social Media University – through which 10, 000 Dell employees have so far been trained as social media professionals ● Dell’s executives are actively engaged in social media themselves ● They have a highly active and supportive online community – not stopping at counting ‘Facebook Fans’, they actively identify potential influencers and develop ongoing relationships with them so they become real brand advocates ● They are passionate Social Listeners – including use of advanced sentiment analysis to determine ‘demoters from promoters’ © Bird & Bird LLP 2011 page 10 Mike Fidelman, Businessinsider. com
Dell’s Social Media Listening Command Centre now monitors around 25, 000 online conversations © Bird & Bird LLP 2011 every day! page 11
How brands are embracing social media Not so much of a global brand – more a little bakery in Shoreditch, East London © Bird & Bird LLP 2011 page 12
● To let customers know when their favourite baked goods had just come out of the oven, Albion installed a ‘Baker Tweet’ device to enable simple Tweets to be sent at the push of a button ● An innovative way to both inform regular customers and generate the sort of positive word of mouth most big brands can only dream of © Bird & Bird LLP 2011 page 13
Approach and tone in online enforcement © Bird & Bird LLP 2011 page 14
Approach and tone in online enforcement ● One of the trickiest challenges for brand owners resulting from the mass consumer adoption of Social Media ● Vast sums spent on creating a brand image can be undermined by an online legal dispute, even on a small issue, being handled incorrectly ● Always remember - in the social media arena your communication is broadcast, not one-to-one ● As a result minor disputes can very rapidly be amplified onto a global scale © Bird & Bird LLP 2011 page 15
Beware the "Streisand Effect" • Photo appeared amongst thousands on online coastal erosion survey • Barbra Striesand issued legal proceedings, claiming the publication of the photo infringed her privacy • Result – from a non-story to widespread, global publicity © Bird & Bird LLP 2011 page 16
A recent Striesand Effect example User Generated Content • Greenpeace released a fake Kit-Kat commercial on Youtube accusing Nestlé of the use of palm oil and deforestation • Nestle sent copyright take down notice to Youtube who removed the video • Greenpeace screamed "censorship”, which massively increased Social Media attention on their campaign © Bird & Bird LLP 2011 page 17
Every 15 minutes a Tweet regarding ‘palm oil’ appeared © Bird & Bird LLP 2011 page 18
While others left comments on Nestle's Facebook page © Bird & Bird LLP 2011 page 19
Leading to some ‘moderation challenges’ © Bird & Bird LLP 2011 page 20
Leading to some ‘moderation challenges’ NB. THE RULES HAVE CHANGED! © Bird & Bird LLP 2011 page 21
Approach and tone in online enforcement ● The aggressive option is not always the best except when dealing with traditional counterfeiters, etc. ● When dealing with consumers listening and genuinely engaging with them likely to lead to far more positive outcome ● When dealing with protest groups, sometimes a low key approach is advisable – don't add fuel to the fire © Bird & Bird LLP 2011 page 22
© Bird & Bird LLP 2011
User Generated Content © Bird & Bird LLP 2011 page 24
Use and abuse of User Generated Content Twitter Ts & Cs: Your Rights ● You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). ● You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and condition for such Content use. © Bird & Bird LLP 2011
Facebook Ts & Cs ● For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IPC content that you post on or in connection with Facebook (IP License). This IP license ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. ● When you use an application, your content and information is shared with the application. ● When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i. e. your name and profile picture) © Bird & Bird LLP 2011
Despite these Ts & Cs, content on social media does not become free for all to use ● BBC used photos found via Twitter during recent London riots. Initial response to complaint about unauthorised use was: 'Twitter is a social network platform which is available to most people who have a computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain. The BBC is aware of copyright issues and is careful to abide by these laws' ● BBC Subsequently released a statement to say this was wrong and was not BBC policy. © Bird & Bird LLP 2011 page 27
Engagement with your brand will mean use of your brand ● You will want to monitor what use is made of your brand in social media but not all unauthorised use should be stamped on. ● However just because the rules have shifted re brand engagement in social media, still want to be able to take quick and decisive action in relation to certain content: counterfeits, fraudulent activity, wholesale copyright infringement, etc. ● What steps can be taken where content does need to be removed. © Bird & Bird LLP 2011
Facebook policies • Facebook usernames may not be sold • Facebook reserves the right to remove and/or reclaim any • • • username at any time for any reason Provides username infringement form (where you need TM registration number) Provides automated DMCA form for copyright notices Provides automated IP infringement form for non-copyright complaints © Bird & Bird LLP 2011
Twitter policies ● Impersonations and username squatting prohibited ● Attempts to sell, buy, or solicit other forms of payment in exchange for usernames are also violations and may result in permanent account suspension ● Specific Twitter “Trade Mark Policy” applies to usernames © Bird & Bird LLP 2011
Liability of social media platforms • Online intermediary liability Article 15 Recital 45 • Harmonised across EU by the Electronic Commerce Directive • Conduits, caches, hosts No general obligation to monitor The limitations of the liability of • Member States shall not impose a 1. Broad (but not universal) application intermediary service providers established in this Directive -general obligation on providers, Exclusions include tax, gambling data protection, cartel law do when providing the services • Restricts criminal and civil liability not affect the possibility of injunctions of different kinds; -covered by Articles 12, 13 and Not injunctions such injunctions can in particular 14, to monitor the information • General monitoring obligation prohibited consist of orders by courts or which they transmit or store, nor -a general obligation actively to But requirement to terminate or prevent an infringement administrative authorities permissible seek facts or circumstances indicating illegal activity. 2. . © Bird & Bird LLP 2011 requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.
Liability of social media platforms • Conduits (pipes) - No liability regardless of knowledge • Hosts - Storage of information provided by a recipient of the service - Conditions: ~ Not under authority or control of service provider ~ No actual knowledge of illegal activity or information; and (for civil) ~ Not aware of facts or circumstances from which the illegal activity or information is apparent ~ On gaining knowledge/awareness acts expeditiously to remove or to disable access to the information - Result: not liable for the information stored at the request of a recipient of the service © Bird 32 Page & Bird LLP 2011 © Bird & Bird LLP 2011
Liability of social media platforms • Is a social media platform a host? - Recital (42): “The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. ” (emphasis added) • Many national cases - Advertising, formatting, presentation structure, categorising, re • encoding, recommendations, suggestions, auto-complete, moderating, etc European Court of Justice - LVMH v Google (host of Ad. Words ads? ) - L’Oreal v e. Bay © Bird 33 Page & Bird LLP 2011 © Bird & Bird LLP 2011
Liability of social media platforms • LVMH v Google (host of Ad. Words ads? ) - Neutrality – “role… merely technical, automatic and passive, - - pointing to a lack of knowledge or control of the data which it stores. ” Mere facts that the service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot deprive Google of the exemptions from liability Concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge or control over, the data entered into its system by advertisers and stored in memory on its server By contrast, the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant. - L’Oreal v e. Bay © Bird 34 Page & Bird LLP 2011 © Bird & Bird LLP 2011
Liability of social media platforms • L’Oreal v e. Bay (counterfeit auction sales) - Applies to the operator of an online marketplace where - that operator has not played an active role allowing it to have knowledge or control of the data stored The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them ~ “In some cases, e. Bay also provides assistance intended to optimise or promote certain offers for sale” ~ Power. Sellers? “are entitled to a personal account manager, personal phone support, fast priority email support, final value fee discounts and access to a dedicated Power. Seller board” (from High Court judgment) ~ For national court to decide - Active role only disqualifies hosting status for those specific offers for sale or data in which it has played an active role © Bird 35 Page & Bird LLP 2011 © Bird & Bird LLP 2011
Liability of social media platforms • L’Oreal v e. Bay (counterfeit auction sales) - Knowledge: if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful ~ Includes where the operator uncovers, as the result of an investigation undertaken on its own initiative, an illegal activity or illegal information ~ Notification: “…although such a notification admittedly cannot automatically preclude the exemption from liability…, given that notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality. ” © Bird 36 Page & Bird LLP 2011 © Bird & Bird LLP 2011
Liability of social media platforms Injunctions • L’Oreal v e. Bay (ECJ) - “. . are able to order the operator of an online marketplace to take measures which contribute, not only to bringing to an end infringements of those rights by users of that marketplace, but also to preventing further infringements of that kind. Those injunctions must be effective, proportionate, and dissuasive and must not create barriers to legitimate trade. ” - cannot consist in an active monitoring of all the data of each of its customers in order to prevent any future infringement of intellectual property rights via that provider’s website © Bird 37 Page & Bird LLP 2011 © Bird & Bird LLP 2011
Liability of social media platforms Injunctions ● Content filtering • SABAM v Scarlet – AG's opinion: injunction forcing filtering of • all communications to block copyright infringements is unlawful SABAM v Netlog – similar reference ● Site and content blocking • 20 th Century Fox v Newzbin (English High Court): injunction granted to restrain infringement of films ● User account suspension can be proportionate. • L'Oreal v Ebay (ECJ) © Bird & Bird LLP 2011 page 38
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