Jo Farmer, Partner Jonathan Coad, Partner Lewis Silkin LLP

Overview Intellectual Property rights on social media Native advertising and regulation of editorial User generated content Press complaints in context of social media

IP and Social Media

Can you use third party IP on social media? Million dollar question: can I take other people’s content from social media and use it myself? Bad news: Not unless you have a licence to do so Good news: You will have a limited licence to use that content in specific ways on the same platform, depending on the platform terms of service from which it comes.

Can you use third party content on social media? BUT  Just because you see individuals doing it across the world– should a commercial organisation do it?  Be wary of editing, not crediting, overlaying with brand IP  What if the third party content itself infringes IP? >Brand is FAR more likely to be sued than an individual for infringing content  Remember “image rights” (or rights under laws of passing off) are not the same as copyright – nothing in the platform terms gives you permission from the individuals featured in an image or video.

New York Times, 4 January 2014

Samsung and “that Oscars selfie”

Who owns a hashtag, a meme, a viral idea...?

Controlling social media output

Who owns a tweet? The copyright owner will be:  the individual who wrote the content; OR  their employer (if it has been written as part of their job in the course of their trade); OR  a third party to whom they have assigned the copyright

Who owns a tweet…?

Native advertising: regulation on social media

The new editorial landscape

Transparency: the law If it is a marketing communication, you must be transparent about the fact that it is marketing Consumer Protection from Unfair Trading Regulations 2008 (CPRs)  General requirement not to mislead by act or omission  Must disclose if you are paying for editorial content or advertorial  Can’t pose as a consumer  Possibility of criminal sanctions  First ever case in Dec 2010 – Handpicked Media

Bloggers: Handpicked media (2010)

Handpicked media: disclosure

Groupola.com – March 2011

Groupola.com Employees falsely posing as consumers to send promotional updates about their company = criminal offence Employee published unidentified positive comments on their Facebook page, including: “Lets face it…if they offer you the same deal in a few weeks time, you will be back to try again, regardless of what you think of them now” “I say fair play!…and no - I don't work at Groupola” Undertakings given not to make statements falsely representing that author is a consumer and to give prominent disclosures in future

Transparency: Guidance and self regulatory codes CAP Code  Marketing communications must be obviously identifiable as such  Use #ad?  Penalties for non compliance; >Enforced by Advertising Standards Authority >Penalties are non financial >Adverse publicity >Legal backstop: Trading Standards

Bloggers 19 March 2014: New CAP Guidance on bloggers:  Content is only within ASA remit where: >Bloggers are paid AND >Brand has editorial control  Blogger outreach programs therefore not covered by ASA, eg >Sending free samples for review >Journalists going on all paid for trip to review new product PROVIDED brand does not have editorial control  If brand does have control over content, then need to signpost the material as advertising Contrast with CPRs (and IAB/ISBA guidance):  Need to disclose paid for editorial content – see Handpicked Media  But, likelihood of enforcement by Trading Standards?

Native advertising “Native ads mimic form and function of the context they are viewed in; they are “native” because they are ‘at home’ in their surroundings”

Native advertising : Outbrain (ASA)

Native advertising: new buzzword, same rules Where need to signpost as “Advertising” or “Sponsored Link”:  Do signpost the status, clearly and prominently, and make sure disclosure works on all devices and platforms  Don’t rely on scrolling, hyperlinks, or explanations confined to the landing page  Tweets about advertorial need to clarify that the destination is advertorial, not editorial  Sponsored search results must also be clearly labelled

Brand ambassador tweets and transparency

Nike/Rooney 2012 v 2013

Rooney – average tweets

Rooney/ Nike 2012 Complaint that tweet wasn’t obviously identifiable as a marketing communication Nike’s defence:  followers of Rooney and Wilshere were likely to know that they were sponsored by Nike?  The Nike URL and strapline should make it clear that tweets were marketing? ASA disagreed:  Ads must be obviously identifiable as an ad  Nothing in the tweet to indicate it was an ad. Suggested use of #ad

Rooney/Nike 2013 Contrast between the average Rooney tweets and this promotional tweet ASA considered that the wording of the tweet in addition and #myground meant that the tweet was obviously identifiable as marketing Prominent use of picture Not upheld

Thank you Jo Farmer Partner