Social Media Marketing Legal Risks including recent case studies.
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
What is Intellectual Property?Enter Social Media
Intellectual Property Challenges
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
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
Hinges on element of unauthorisedAutomation and digitisation clinging onto the principle that the act is unauthorised
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
Trade Secret Violation
Violation of Restraint of TradeViolation of Non Disclosure AgreementsSolicitation of EmployeesReverse EngineeringIndustrial Espionage
Not about upgrade to technical specifications of the web.Different platform for users to engage with the web and on the web
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
Intellectual Property Challenges
DefamationBreach of Privacy Interception of CommunicationsInformation SecurityReputational RisksElectronic Records
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?
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
Reproduction rights? Exclusive licence?Performance rights?Commercial use?Distribution rights?Termination of account?
Trademark InfringementWho is @mycompanyname?
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
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
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
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
36Social Media Policy
Disclaimer: "The postings on this site are my own and don't necessarily represent Company's positions, strategies or opinions.
Restrictions on SM Use & Unacceptable Use
Intellectual Property RightsInterception of Communications37
http://123socialmedia.com/2009/01/23/social-media-policy-examples/38Content Licensing Framework ?
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
Intellectual Property InfringementDefamationBreach of PrivacyInformation SecurityReputational Risks
firstname.lastname@example.org 463 6368083 384 4543www.chettylaw.co.za