Social Media - Canadian Bar Association

MATERIALS / MATÉRIAUX
2012 Competition Law Fall Conference
Conférence annuelle d'automne 2012 en droit de la concurrence
My Views On The Marketplace
And How CCL Plays In The
Social Media Space
Fiona K. Orr
Vice President, Senior Managing Counsel,
Coca-Cola Ltd.
September 20 - 21, 2012 | 20 et 21 septembre, 2012
Hilton Lac-Leamy | Gatineau, Québec
Presented by the Canadian Bar Association’s (CBA) National Competition Law Section and
the Professional Development Committee of the CBA
Présentée par la Section nationale du droit de la concurrence de l’Association du Barreau canadien (ABC)
et le Comité du développement professionnel de l’ABC
My Views On The Marketplace
And How CCL Plays In The
Social Media Space
2012 Annual Competition Law Conference
September 20-21, 2012
Fiona K. Orr
Vice President, Senior Managing Counsel,
Coca-Cola Ltd.
First things first:
The views and opinions
expressed in these materials
are those of the presenter and
may not necessarily represent
the views or opinions of
Coca-Cola Ltd.
What will we talk about today?
• Introduction and overview
• Quick overview of the evolution of technology and
social media and how it’s impacted the practice of
law
• Discussion of how marketers can use social media
and the complex web of legal issues they step into
when they do so
• The evolution of Coca-Cola’s approach to social
media
Let’s talk about technology and social media.
• I started practicing in ancient times (1989).
 Our desktop computers (there were no laptops) were DOS
based.
 We had a primitive internal email system.
 The internet was still kind of science fiction.
 Legal research was mostly done in the library.
 When you wanted to share an electronic document with
opposing counsel, you saved it onto a 3.5” floppy disk and
couriered it.
 When your clients wanted to reach you, they called you or
sent you a letter. If it was urgent, they might fax you
something (if you had a fax machine).
Technology and Social Media (continued)
• Fast forward to today:
 I will now check to see how many email messages
I’ve gotten so far today.
 The ability to access and share information is the
most significant development in my lifetime (and
perhaps in history).
 Expectations have been re-set universally. Business
moves at lightning speed, and support for the
business has to keep up.
 Digital and social media often don’t fit neatly into
the confines of traditional laws.
Social Media
• Social Media is simply about relationships and how we converse today
– Not a fad but a fundamental shift in the way we communicate
• Quick facts:
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Overtaken porn as the no.1 activity on the web
50% of mobile internet traffic is on Facebook
The No. 2 search engine is Youtube – Google owns them both
If Wikipedia was made into a book it would be 2.25 million pages long
1 in 5 couples meet on Facebook – 1 in 5 divorcees blame Facebook
What happens in Vegas, stays… on Youtube, Flickr, Twitter and Facebook
Over 32m people have watched the VolksWagen Darth Vader ad on Youtube
Justin Bieber of Stratford Ontario (Population of 80k) has 28M followers on
Twitter
• If tweens could vote in an election, who do you think would be prime minister?
How can marketers use social media?
• A way to join conversations, share information, and
message huge numbers of consumers quickly,
cheaply, and easily.
• Can use countless platforms:
What’s the big deal then? Why can’t marketers just
use social media like everyone else?
• Social media was not created for marketers
• Conversations and sharing were intended for individuals
protected by freedom of speech principles
• For marketers to participate in consumers conversations, they
need to start acting like people and not brands or shifty
salesmen
The current legal landscape:
• Until further notice,
traditional laws apply
• The law doesn’t favor marketers’
sourcing/use of content without
permission
• Be wary of developing a false sense of security
So, what should marketers be nervous about?
• Transparency and Truthfulness – Penalties under the
misleading advertising provisions of the Competition Act
• Potential civil track consequences:
– $10 million AMP ($15 million for repeat offences)
– Restitution awards up to the amount paid
• Potential criminal track consequences:
– Unlimited fine
– Imprisonment for up to 14 years
– Possible parallel civil/class action claims
So, what should marketers be nervous about?
• Rights of Publicity/Privacy
Probably the trickiest area with regard to legal
analysis
• What law or laws apply?
• Is there consent? Was it properly obtained?
• Is there a “commercial purpose”?
• What elements of persona are covered?
• Has privacy been invaded?
• Could the communication be “spam”?
So, what should marketers be nervous about?
• Copyright infringement
The ease with which materials can
be copied and pasted in social media
can lead to a false sense of security
“Fair” use and “public domain” are
often very misunderstood
Marketers often feel they have some
sort of “journalistic exemption”
So, what should marketers be nervous about?
• Use of Music
One of the most misunderstood areas of the
law
Multiple rightsholders:
• Artist
• Label
• Publisher
Different rights may need to be cleared for
different uses
So, what should marketers be nervous about?
• Trademarks
Use your own marks properly
Clear new marks before using them
Be respectful of others’ marks, including
securing permission where appropriate
My rule is always get permission!
So, what should marketers be nervous about?
• Linking
Do you need permission?
Can the site owner give you all the
permissions you need?
Does the linked site include any inappropriate
material?
Will the linked site collect PII from visitors?
So, what should marketers be nervous about?
• Substantiation
 Any messaging that you send out or that you
otherwise might be held responsible for and which
includes what appears to be an objective, verifiable
statement about your company or your product
must be truthful and not misleading, and you must
possess substantiation to support such statement at
the time the statement is made. This requirement
applies in social media just as in any other context.
So, what should marketers be nervous about?
• Contests
 Subject to the same rules and regulations as in other
media/contexts
 Need lawful methodology
 Must protect consumer data
 Guard against fraudulent activity
 Be aware of and enforce eligibility restrictions
 Secure appropriate permissions if third-party prizing is
offered
 Be aware of and comply with platform’s requirements
So, what should marketers be nervous about?
• Quebec-specific Issues
 Promotional contests
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Notice to Régie des alcools, des courses et des jeux
Duty (tax) paid
Rules conform
Rules and ads in French
 Social media
 Contests must be simultaneously in English and French
So, what should marketers be nervous about?
• User-Generated Content (a/k/a the hobgoblin of marketers everywhere)
Laundry list of potential issues:
 Copyright infringement
 Violations of rights of publicity/privacy
 False association or false endorsement
 False advertising
 Trademark infringement
 Libel/defamation
 Patent infringement
 Claims by ACTRA
 Violation of data privacy requirements or PIPEDA
 Violation of rules regarding marketing to children
 Violation of Competition Contest or other of outside of Canada Guides
 Violation of lottery laws
 Violation of corporate disclosure rules
 Public relations and brand strategy issues
What sort of protections might be available?
• The Due Diligence Defence
– Advertisers should be prepared to demonstrate
that they undertook reasonable due diligence
(civil track)
– Advertisers should be prepared to demonstrate
that they did not act recklessly or knowingly
(criminal track)]
What sort of protections might be available?
• Terms of Use- update frequently
Be sure they match up to what you’re actually
doing on the site
Make them as clear as possible
• Include appropriate disclosures and
disclaimers on the website
Make sure users know what to expect from
the site
Be clear and transparent
What sort of protections might be available?
• Vetting/Monitoring/Filtering of submissions
Much of the risk, particularly with UGC, can be
mitigated if you vet submissions
Can use human and/or tech filters
At the very least, include a system for
community monitoring (flagging)
Include a downloadable release?
What sort of protections might be available?
• Follow Industry Guidelines
Office of the Privacy Commissioner of Canada
has published Guidelines that represent best
practices in the social media space
While these documents do not constitute law,
they reflect the principles on which industry
self-regulation is based, and adherence to
them demonstrates adoption of best practices
What questions should you as a marketer ask
before leveraging a social media platform?
• How do the platform’s Terms of Use affect a
marketer’s use/re-purposing of content from the
platform?
• How can a marketer use the platform’s trademarks
in its marketing materials to drive traffic to the
marketer’s location on the platform?
• What are the platform’s policies regarding contests
and sweepstakes? Does it have different standards
for whether a contest/sweepstakes is administered
on the platform vs. merely advertised on the
platform?
What questions should you as a marketer ask
before leveraging a social media platform?
• What are the platform’s policies regarding
“cybersquatting” (using that term loosely), such as when
users include trademarks or others’ identities in their
profile names or otherwise on the platform?
• What is the platform’s position regarding responsibility
for infringing or defamatory material published on the
platform? What if it’s published on a fan page or
community belonging to a brand? Should/can the brand
have its own disclaimers and take-down procedures?
What other strategies or techniques can a brand use to
engage in social media on the platform while insulating
itself from liability?
What questions should you as a marketer ask
before leveraging a social media platform?
• In what sorts of circumstances must brands seek
permissions to engage in activities on the platform? In
what sorts of circumstances do brands need to actually
enter into agreements with the platform? What are the
criteria the platform uses for granting or denying
permissions, and what are the standard terms of
required agreements?
• How does the platform manage the collection of PII, and
how can a marketer collect PII on the platform?
• How is the platform connected to mobile social
marketing, and what mobile tools and resources does
the platform have that a marketer can leverage?
In the future:
• Courts, regulators,
legislators, and individuals may
collectively decide that marketers have
more “license” to re-use materials in
social media than elsewhere.
• We’re not there yet.
• In fact, the opposite seems true
What is likely to stay the same:
Need for:
•Truthfulness
•Transparency
•Respect for privacy
The Office of the Privacy Commissioner has already
taken steps to modernize these concepts (Facebook
investigation, Guidelines)
What might change?
When permission is needed and how
permission is granted or implied.
Why might this change?
•Fundamental differences between social
media and the brick-and-mortar world
•Social media platforms, including terms of
use, etc., arguably change the dynamic
We’re not there yet.
Where does that leave us right now?
• Lots of “gray area”
Clearly
Lawful
Clearly
Unlawful
How can we deal with the gray area?
• Develop tools that can help identify risks
so that we can make informed decisions
• Base these tools not only on strict legal
analysis, but also on emerging trends,
customs, and accepted practices.
The evolution of Coca-Cola Ltd. approach to social
media
How has the Company evolved?
• The Company has traditionally been
relatively conservative. However, as
digital and social media have grown, so
has the Company’s presence there.
• Today, we have the #1 Facebook Fan
Page, with over 50 million fans.
• How did we move from one place to the
other?
Fish where the fish are.
• We recognized that as a part of culture
and everyday life, we had to be part of
consumers’ world online.
• Also identified the need to be respectful,
adopting a “fans first” mentality.
• How could we implement this across
such a large organization?
Liquid & linked – A new creative process
• Content excellence –
purpose to create
ideas so contagious
that they cannot be
contained – known as
‘Liquid’
• These stories are
relevant to our
business objectives,
brands and consumer
interests – known as
‘Linked’
4 Principles driving content excellence and Liquid & Linked
Social at the heart
– Why should I
care? Why should I
share
70% tried and
tested; 20%
pushing the
envelope but
medium risk and
10% next
generation high risk
Leverage Owned (our
product, trucks,
employees), Earned (PR
& Social Media) Shared
(Assets we partner with)
and Paid (media)
No dead ends –
every element
leads to
something else
and keeps the
conversation alive
The Company’s Social Media Initiatives
• Online Social Media Principles published in December 2009
The Company’s Social Media Initiatives
• Social Media Certification Training Program – early 2010
• KO Social Publish – May 2010
• Social Media Playbook – June 2010
• Online Social Media Publishing Guidelines & Compliance
Handbook – September 2010
• Social Media Crisis and Communications Plan – Sept. 2011
• Social Media 101 and 102 rolled out this year, with additional
specialized training to follow
• Other than employees speaking in Social Media- all other
SMEs and Agencies have to be trained to play in this space.
Legal’s Role in Social Media
• Ensuring adherence to legislation and guidelines
• Developing compliance programs and training to
support due diligence defences
• Following best practices when navigating ‘grey area’
issues
• Frankly – In my advice, I ask a lot of questions based
upon the belief that each person using the medium
may not understand it , has a lot of time to be on line
and to complain if unhappy- because they will.
Move to the Beat Tour
LINK
http://www.youtube.com/watch?v=rK62rsD
kmko
Questions?
Appendix - 70/20/10
• 70% of our output is tried and
tested and low risk. This
takes up 50% of our time
• 20% is medium risk – things
that we are pretty confident
will be received well. Takes
up 25% of our time
• 10% is high risk – things that
are completely new but could
be very successful for the
brand. This also takes up
25% of time