Social Media and IP

June, 2011

Social Media is the buzz word in marketing circles, but the reality is that many clients don’t understand what it is and how it affects them.

As an IP lawyer, I have seen a steady increase in the number of clients needing advice on how to deal with Social Media. Interestingly, many are coming to me with the same questions – What is Social Media? How is Social Media different? What are the IP issues? Do we need to get involved in Social Media? My answers to these questions are set out below.

What is Social Media?

There is no exact definition for Social Media. Ironically, even Social Media groups have found it difficult to arrive at a single definition (see http://thesocialmediaguide. com/social_media/50-definitions-of-social-media/). In the true spirit of Web 2.0, and for the purposes of this article, I will define Social Media as the “non-traditional media that can be used to market and promote your organisation’s goods and services”.

The most common Social Media outlets are also the top social networks. Unsurprisingly Facebook is at the top, closely followed by Window Live and Linkedin.

How is Social Media different?

Many of you will have taken the traditional route of marketing and promoting your organisation through accessibility (yellow pages, website) and exposure (television, radio and print advertisements). Although potentially expensive, these methods at least allowed you to control the content, delivery and permanency. For example, television advertisements run in time slots when your target audience are most likely to be tuned-in. Controversial or unpopular advertisements can be stopped immediately. Added to this is the ‘gatekeeper’ media outlet that prevents competing products being shown at the same time.

Social Media offers a similar forum to communicate with the market and promote your goods and services, however, it differs from traditional media as the comparison table on the next page highlights.

The key difference is the lack of control that you can exert over your content. Ironically this is caused by the key benefits of Social Media – mass exposure through interaction and UGC. It creates a conundrum for any organisation – loss of control versus potentially greater exposure?

From a legal standpoint, Social Media is still in its infancy, with only a handful of court cases being decided. Also, the majority of literature talks about how Social Media can enhance your business and not the pitfalls and legal concerns. This is perhaps part of the reason why many clients are unaware of the IP issues that arise from their use of Social Media.

What are the IP issues?

The short answer is that Social Media has exactly the same IP legal issues as traditional media. Take one of my clients (Client A) as an example to highlight the similarities, but also the inherent IP issues with Social Media.

When it comes to traditional media, Client A will come to me seeking a clearance advice on their proposed marketing materials which can include everything from television, radio to traditional print advertisements. In a similar vein, I may screen or draft publicity statements and press releases that address a legal wrong or recast the correct version of events. Clearance advices are often provided in an environment of extreme time pressures (i.e. 5:00 pm the night before it goes to print). This is even more so with press releases because they are often reactionary and the window of opportunity for damage control can shut quickly. My role is to ensure that these do not contravene the various Intellectual Property laws including the Copyright Act, Trade Marks Act, Defamation, Australian Consumer Law (formerly the Trade Practices Act) and Passing Off.

Client A is insightful and contemporary in its approach to business. It typically practices my Intellectual Property mantra of “prevention is better than cure”. Yet despite this, Client A had never previously obtained a clearance advice in relation to material for its Social Media pages. Ultimately Client A came to me with an issue surrounding potentially misleading statements it had made on its Facebook page in relation to a prize for members.

When I pointed out to them that this was the type of promotion that I would typically clear prior to publication for traditional media – they responded with the honesty of a trusted client “we didn’t really think about it – it’s Facebook, also we wanted to keep the content relaxed and non-legal”.

Their response was not uncommon and touches on the life-long tension between a potentially ‘killer’ marketing campaign and legal liability.

Do we need to get involved in Social Media?

There is no doubting that Social Media is a powerful tool to generate exposure for your organisation, at low cost and with maximum impact. However, given the potential pitfalls – many organisations ask me “do we really need to get involved?” The decision is ultimately yours to make and may be ultimately guided by the need to maintain your reputation. For example – do we want to be seen on twitter or will we keep to the more business based sites such as Linkedin?

If you do choose to enter the realm of Social Media – remember these golden rules:

1 Social Media is not above the law
It is best to treat the content in the same way that you treat all other forms of marketing material. Have it screened before printing.

2 Adopt a strategy
Social Media is new and dynamic so it is critical that you put in place a strategy for dealing with content control.

3 Be vigilant – it is all or nothing with Social Media
You cannot start a campaign or Facebook page and then leave it to its own devices. Remember that many social networking sites allow for UGC, and recently organisations have been found liable for UGC that they failed to remove from their website (see the Allergy Pathway case). Some Social Networking sites will create a page that looks like your official page. Before long you will have customer complaints about a web page that you did not create.

Social Media and Not-for-Profits

So how does social media affect not-for profits differently to other organisations? The answer lies in the fundamentals of how NFPs communicate with contributors and supporters. Social Media is cheaper than traditional forms of marketing and promotion, and it comes with an added bonus of potentially greater exposure to a larger audience. The appeal is obvious, but without a strategy in place it can easily become the forbidden fruit.

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