The Lawyers Weekly - June 18, 2010

THE LAWYERS WEEKLY
June 18, 2010 | 21

BUSINESS
CAREERS

Using social media safely

ELAINE WILTSHIRE
Social media is not going away.
Once thought of as trend, sites like
MySpace, Facebook and now Twitter
have seeped into our everyday lives.
According to the “Social Media
Reality Check” conducted by CNW
Group and Leger Marketing in 2009,
nearly 50 per cent of users surveyed
said they access social media tools
once a day. It was also reported that
over 60 per cent use social media to
research products before purchasing,
and one-quarter of users said they
feel better about an organization that
is engaged in social media.
So what does that mean for com-
panies? If you are not online, you
may be losing customers.
“Social media certainly is no longer
a fad, probably never was a fad,” said
“We, as lawyers and certainly as
advertisers, need to understand social
media and we need to get our heads
around all the issues that relate to it.”
From intellectual property rights
to privacy concerns, from compliance
with a third-party site’s terms of use
to disclosure issues—protecting a
company’s legal rights when dealing
with social media marketing can be
difficult to navigate if you’re in
unfamiliar territory.
One way to ensure a company’s
safety when dealing with legal issues
surrounding social media is to
ensure a corporate policy is in place
before the site goes live, said Ruth
Rapoport, assistant general counsel
at Unilever Canada Inc.
According to Rapoport, a corpor-
ate policy should speak about the
planning process of an internet
marketing campaign, especially in
terms of who in the company has to
be involved with the initiative.
“You have to identify in the
policy the person who is going to
be responsible for its compliance,”
she said. “You also have to desig-
nate somebody who is going to be
responsible for circulating the
policy within the company.”
Other issues that need to be
addressed in the policy include who
will communicate with the users of
the site or social media page; who
will be monitoring the site and what
type of monitoring is needed; how
to ensure the content is in compli-
ance with the law and any third-
party site’s terms of use; and the IP
and privacy rights of the users.
“Also, as with all policies, you
want to make sure that relevant
people are consulted and that you
get the sign-off needed.
“I’ve seen teams work for months
and months on policies and forget to
consult people who really should
have been consulted or they don’t get
approval so the policy disappears.”
Rapoport also suggests having a
“decision tree” in place, saying it’s a
very useful tool when working with
social media.
A decision tree gives the site mod-
erator guidance on how to deal with
certain situations. For example, if a
user posts a comments that contra-
venes the company’s posting policy,
the decision tree would direct the
moderator to remove the content.
“It also will identify those cases
when [the moderator] would have
to go back and run something by
legal or corporate communications
before giving a response.”
The moderator also needs to be
properly trained to not only deal
with issues that may arise, but also
understand the company’s key mes-
sages to ensure branding continuity.
The moderator has “to use the
exact language,” said Rapoport. “So
you have to impress this on people
who are going to be moderating your
site or you can get into trouble.”
Moderators are also an import-
ant element in terms of ensuring
the site’s overall success.
“Somebody has to make sure the
site is doing what you want it to do,”
Using a third-party site can be
enticing for a company looking to
promote a brand, product or initia-
tive, especially based on the sheer vol-
ume of users and accessibility of sites
like Twitter and Facebook.
Viral marketing really takes advan-
tage of the functionality of social
media tools to attract high traffic to a
company’s site or social media profile.
“What viral marketing does is har-
ness the strongest consumer trig-
gers— it’s the personal recommenda-
tion,” said Kelly Moffatt, a partner at
Osler, Hoskin & Harcourt LLP and
conference presenter.
“The goal of the viral marketing
campaign is to create a message, send
that message out to part of your tar-
get market and then make that mes-
sage so compelling that your target
market feels compelled to forward it
on….It really just captures people’s
interest so they really do a lot of the
marketing for you.”
Viral marketing is based on the
idea of rapid multiplication— some-
one tells two friends, they each tell
two friends, and so on.
But, said co-presenter Catherine
Bates of Heenan Blaikie LLP, “a tweet
isn’t just telling one friend, it’s telling
50, 100, or maybe 1,000.”
Social media tools are “an instan-
taneous first step that has the poten-
tial to go even further on a hugely
exponential basis,” said Bates.
But viral marketing really
comes with a unique set of legal
risks due to its unpredictable
nature. The goal of legal counsel is
to make sure the necessary steps
have been taken to manage and
anticipate potential risk associated
with these types of campaigns.
One specific risk, especially
when dealing with third-party sites,
is loss of control of the message,
said Moffatt.
“The internet makes it so easy
for [users] to forward your mes-
sage, but it also makes it a lot easier
for them to tweak [it],” she said. “So
really that creates a risk that both
your message and the audience to
which it’s going to be delivered is
going to become inconsistent or get
a bit off-track with what the mar-
keters’ original objectives were.”
Bates agrees, adding, “Once the
message has been created, whether

SANIPHOTO / DREAMSTIME.COM
See Social media Page 22
ONE OF THE challenges facing organizations now
more than ever is how to attract and retain busi-
ness, despite the vast amount of choice in the mar-
ket and the economic realities facing consumers.
“One of the most important ways a company can
try to go out there and get new business and keep
their customers interested is to develop clever and
hopefully very effective advertising campaigns,” says
Ingrid VanderElst, a partner with Tory LLP’s intellec-
tual property group and presenter at the 16th Annual
Conference on Advertising and Marketing Law.
“That’s very easy to say but in practice it can be
very tough to pull off and really requires a huge appli-
cation of effect, both in terms of a company’s internal
resources as well as bringing external resources in to
assist, which of course has a cost associated with it.”
Creating a successful marketing campaign,
whether online or through traditional media, can be
costly and time consuming; therefore it’s important
to ensure a company’s legal rights are protected.
According to VanderElst, “How you protect the
elements of an advertisement really depends upon
the intellectual property right that is associated
with the various elements.”
Copyright and trademark law can be applied to
many of the elements found in an advertising cam-
paign— and not just the traditional elements such
as text, images and slogan, but digital elements
such as website design and domain names.
VanderElst advises that when launching a new
product, make sure to register the domain name,
whether a website is part of the branding pro-
cess or not.
Registration is inexpensive and will protect the
company from someone outside the company who
buys the domain name with the intention of selling
it to the company when the brand becomes valu-
able. This practice is known as “cybersquatting.”
“Although there are some remedies, you may find
yourself having to negotiate and deal with someone
when you really don’t want to,” says VanderElst.
Another issue to consider when embarking on an
Internet marketing campaign is the use of third-
party sites, such as Facebook, You Tube or Twitter.
Use of these sites can give rise to intellectual
property issues since there can be a question as to
who owns the content. VanderElst recommends
looking closely at the terms and conditions of the
site to help determine ownership before embarking
on a social media marketing campaign.
Also with social media marketing, comes the ques-
tion of user generated content. When looking at social
media, part of the allure for advertisers is the ability to
directly communicate and interact with consumers.
But what if the advertiser was interested in
using the user generated content for its own pur-
pose? According to copyright law, whoever wrote
or posted the material is the author and owns the
rights. So the question then becomes how does a
company get the right to use it?