Social Media Marketing Legal Risks

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    01-Dec-2014

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Social Media Marketing Legal Risks including recent case studies.

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to the internet as platform, and an attempt to understand the rules for success on that new platform

Social Media MarketingLegal Risks

Pria Chettypria@chettylaw.co.zaChetty Law1

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What is Intellectual Property?Enter Social Media

Intellectual Property Challenges

Boardroom Conversations3

4CopyrightLiterary, Musical, Artistic Works, Films, Comp. ProgrammesTrademarkLogo, Name (Brand)Trade SecretFormula, Practice, Process,

Copyright subsists automatically,Expression of ideas

Recognises input into reputation and goodwill

Competitive AdvantageEconomic Advantage

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Copyright Infringement

Copyright holder has the exclusive right:

To Reproduce To make adaptations based on the original workTo broadcast To cause the work to be transmitted in a diffusion serviceTo distribute copies To perform To display the work in public

Exploitation of any one of the copyright holders worksExercising of any of the exclusive rightsInsight is the limited durationMore importantly the rights are divisible

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Hinges on element of unauthorisedAutomation and digitisation clinging onto the principle that the act is unauthorised

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Trademark Infringement

Passing Off (whats mine is not yours) Unauthorised use of actual mark

Use of mark (actual or similar) in relation to similar goods or services

Identical or Confusingly Similar

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Trade Secret Violation

Violation of Restraint of TradeViolation of Non Disclosure AgreementsSolicitation of EmployeesReverse EngineeringIndustrial Espionage

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Not about upgrade to technical specifications of the web.Different platform for users to engage with the web and on the web

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16The Art of Conversation

Lloyd Salmons, first chairman of the Internet Advertising Bureau social media council: Social media isn't just about big networks like Facebook and MySpace, it's about brands having conversations

utilizing the various social networking sites to enforce your brand and market your business17

Where? TwitterFacebookYouTubeLinkedinWordpress/bloggerFlickr How? Linking to profiles from your contact page, or other high ranking pages on your siteCross linking between your social media profilesLinking to these pages in any articles or blog posts you write

utilizing the various social networking sites to enforce your brand and market your business18

The FTSE 100 index comprises the 100 most highly capitalised blue chip companies on the London Stock Exchange, representing approximately 81% of the UK market.19

http://www.realfresh.tv/introduction-to-study-on-social-media-usage-amongst-ftse-100-companies//20

21Legal Challenges

Intellectual Property Challenges

DefamationBreach of Privacy Interception of CommunicationsInformation SecurityReputational RisksElectronic Records

22Intellectual Property

Ownership ?Licences ?

Employee? Social Media Company

23Who Owns SM Accounts (Trademark) ,Content (Copyright) & Followers (Brand & Trade Secrets)?

Employee/ Twitter/ Company?

Course and Scope of Employment?

8am-5pm?

Whose internet connection?

Company Policy 24

25Terms of Service Binding?

Electronic Communications and Transactions Act (Legal force and effect)

Click-wrap Agreements/ Browse Wrap Agreements

26Copyright Ownership?

Reproduction rights? Exclusive licence?Performance rights?Commercial use?Distribution rights?Termination of account?

Trademark InfringementWho is @mycompanyname?

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Twitter claims no intellectual property rights over material

Termination = removal of text & images in system28

We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.29

http://www.huffingtonpost.com/jonathan-handel/trademark-protection-and_b_213756.html/In theory functional equivalent of domain name

First come, first served

"Preventing the Registration of a Username form

"Notice of Intellectual Property Infringement (Non-Copyright Claim)"30

Brand Risks?

Blurring of private & professional personas of employeesPosting of inappropriate content

Disclosures & complaints by customers

Defamatory comments about company

Anonymous defamatory comments about company

Dealing with objectionable or negative comments

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http://123socialmedia.com/2009/01/23/social-media-policy-examples/Branding work undone as Details of U.K. tax case spread by employees

42% of Pringles = potatoes, claims of sawdust etc.

Pringles is a brand with many loyal fans on SM sites, 2.8 million fans on Facebook

32Trade Secret Risks?

Publication by employee of confidential information

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35Social Media Marketing Strategy

Statement on Risk Management

Evaluation of risks each SM tool

Statement on Legal Compliance

Statement on Ethics

Statement on E- Records Management

Privacy Principles

36Social Media Policy

Disclaimer: "The postings on this site are my own and don't necessarily represent Company's positions, strategies or opinions.

Conduct

Confidentiality

Restrictions on SM Use & Unacceptable Use

Intellectual Property RightsInterception of Communications37

http://123socialmedia.com/2009/01/23/social-media-policy-examples/38Content Licensing Framework ?

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The Economy of Ideas WikinomicsThe Wealth of Networks40

Open licensing frameworks rely on principle of copyleft, relies on the copyright holders right to determine how their works are used.Instead of restrictive application of rights, for various reasons, an open application of rights, licence to use, reproduce, derive from41

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44Legal Risks

Intellectual Property InfringementDefamationBreach of PrivacyInformation SecurityReputational Risks

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http://www.spamfighter.com/News-12389-Cybercriminals-Fabricating-Clone-Social-Networking-Sites.htm 46

THANKS!!

Pria Chetty

pria@chettylaw.co.za011 463 6368083 384 4543www.chettylaw.co.za

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www.chettylaw.co.za

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