Want to tap into the amazing potential of reaching the millions of users of social media? We look at some of the issues to keep in mind when seeking to bolster your brand and business through social media.
What is social media?
Social media is a powerful marketing medium. It is designed to be disseminated through social interaction, created using highly accessible and scalable publishing techniques. Examples include social networks (Facebook, MySpace), blogs, microblogs (Twitter), wikis, online forums and content sharing communities.
Part of the power of social media is its ability to reach millions of users. Facebook currently has over 500 million users and 100 million users are added every 150 days. It is unsurprising the corporate world, in order to reach this extensive user base, has turned to social media to promote brands, products and services.
In the last decade, online marketing via social media has increased exponentially. Today, most corporations (across all industries) have an online presence, with many employing social media to promote their brand, products and services. Social media is instantaneous, easily accessible and user friendly, but not risk free.
Despite the expansive and seemingly unregulated nature of online social media, there are several pitfalls users should be aware of when engaging social media.
Beware of the rules
Cyber space is not immune to traditional laws governing media and marketing. In some instances, the internet and social media may be more heavily regulated than traditional forms of marketing. In addition to State and Commonwealth laws and relevant codes of ethics and conduct, online terms and policies apply to users of social media.
For example, by creating a Facebook page, the user is required to accept and comply with Facebook’s:
Terms, policies and guidelines of social media websites are usually detailed and subject to constant change. As a result, many online users subscribe to such sites without fully understanding their rights and liabilities in relation to ownership and control of and liability for uploaded content. This includes employees who engage in online activities on behalf of their company.
Many users give limited consideration to the consequences of uploading content on social media websites. In an attempt to achieve wider brand recognition, companies and businesses upload logos and branding on social media sites. While this may achieve greater recognition of the brand, the effect of uploading material should be considered.
Engaging social media results in a partial loss of control over the content being marketed. This is the effect of acceptance of the terms of most social media websites. For example, when a user posts information or any form of intellectual property on Facebook the user grants Facebook, pursuant to the terms and conditions, “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that [the user] post[s] on or in connection with Facebook”.
As a result, under the terms of the licence, Facebook could, theoretically, grant a sub-licence to another company or competitor to use a company’s brand and/or logo if this material is uploaded on Facebook. While this is unlikely to occur, it highlights the need to give careful consideration to the types of social media used in online marketing and the material uploaded on these sites.
Potential legal implications
Uploading content to social media sites allows interaction with other users and other users to view and post comments or information on webpages, including negative or harmful material.
Users may be tempted to monitor pages and delete posts of this nature. Doing so, however, may result in the user exercising editorial control over the information on the page. By controlling the content of a page a user may be held to be “publishing” the material. This, in turn, could expose the user to secondary liability for defamation and other forms of legal action depending on the nature of the information posted. Users who engaged social media as an online marketing tool should therefore have an appropriate response policy to address this issue without resorting to heavy content control.
In addition to the law of defamation, laws restricting misleading and deceptive conduct and regulating advertising also apply to online content.
Section 52 of the Trade Practices Act 1974 (Cth) (TPA) prohibits a corporation, in trade or commerce, engaging in conduct that is misleading, deceptive or likely to mislead or deceive. This extends to online conduct including posting information online and responding to user comments and posts. It is not difficult to imagine how posting misleading product information on a company Facebook page could be contrary to Part V of the TPA, assuming the company was actually responsible for the page.
Further, laws prohibiting misleading or comparative advertising, copyright and trade mark infringement and regulating privacy, spam and domain name use also apply to social media.
Policing your brand
Whether or not your company engages social media for online marketing, it is important to be aware of your brand’s online presence. It is possible for third parties to create online profiles and assume your brand with relative ease. Policing your company brand is therefore important in protecting valuable intellectual property.
Relatively simple methods can be adopted to monitor brands. These include using Google Alerts and regularly performing Google keyword searches to indicate where the brand is used and whether third parties are using the brand.
Establishing processes to address infringement is also necessary. The first step, if infringement occurs, is to report the infringement or inform the infringer of the infringing conduct. Google and most online social media sites have avenues of reporting intellectual property misuse which are relatively fast and effective to use. Simply reporting or raising awareness of the infringement may be effective in stopping it.
Monitoring your online marketing
The nature of social media is that employees use it in a personal capacity.
The risks they may be prepared to take with their personal content may be very different to corporate policy as to treatment of business brands and reputation. Use of social media by companies and businesses needs to be considered and appropriate - and employees need to be aware of the distinction.
The speed and interactivity of social media does not lend itself to the same review processes as traditional marketing. It is likely to be less formal, less monitored and less controlled, and with this comes risk. While traditional marketing sign off may be inappropriate for social media interactions, there should be rules, guidelines and even common responses to enable you to present a consistent brand and correct information through your online marketing.
Conclusion
Before engaging social media for online marketing, consider the marketing strategy and proposed content to be uploaded.
Know what the rules are, have a policy as to what can be uploaded and how employees can market using social media, and make sure employees are aware of these policies. This, in addition to brand policing and online monitoring, will allow you to take advantage of the benefits of marketing online via social media while minimising the risks.
The key with social media is to be fast, flexible and interesting so as to be effective, sufficiently in control. Monitoring and oversight are essential to avoid unnecessary legal pitfalls and risks.