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This article was published on September 24, 2012

Don’t steal, don’t lie. The ethics of social media law are trickier than you think

Don’t steal, don’t lie. The ethics of social media law are trickier than you think

Social Media Week London has kicked off and as the heavens opened, a group of soggy bloggers, marketeers and interested parties arrived at Hatton Garden in London to see a talk about the legal pitfalls of social media in the UK.

It’s all at once surprising and not. The talk was focused on the legal issues relating to marketing and advertising; the two methods created to walk the line between truth and aspiration to make people buy things.

Social media is naturally a big part of these two sales areas. Just like TV and radio before it, social media is where customers are and this makes it prime real estate for brands.

Jo Farmer, Partner at Lewis Silkin LLP was conducting the talk about the law in the UK and it was surprising to hear how much common sense she has to try to instill in the minds of clients. Kudos to legal advisors with this level of patience.

Broadly, online marketers have a few hotspots to look out for. User generated content (UGC), transparency and disclosure and intellectual property. There’s naturally a lot more per case but for a short talk, these topics were clearly explained.

Proof in Reviews

UGC covers not only the intellectual property (IP) of others, but also comments and reviews and how they are used.

Having reviews might seem like a simply way to get some great opinions (providing people love your product of course). But if you start to manipulate those reviews, then you are subject to assessment as to whether you have adopted and incorporated those reviews as part of your marketing strategy. If it is deemed that you have, then like any other marketing claims, you must prove that they are true.

When it comes to running competitions with UGC, there’s also a fine line to walk between upsetting a regulator like the Advertising Standards Agency (ASA) or the Office of Fair Trading (OFT).

Making sure the rules are clear, where the material will end up and how it will be used should help to avoid getting into hot water. If you steal material without permission, you’re probably going to get sued. Stealing right? Common sense not to do that.

Besides being the wrong thing to do, one of the more interesting past times of the social Web is the scavenger hunt for bad ideas. Once someone lifts the corner on the rug you’re trying to sweep your dirty dealings under, you’ve got no chance.

The Web is full of passionate people, ready to rummage gleefully through your dirty laundry and hold it high for everyone to see. Probably better not to mess with a hive mind, there are some exciting examples of what happens when you do.

Tag transparency

One interesting trend coming out of advertising and marketing via social media is the appearance of hashtag markers. #spon and #ad are not typos but in fact show that a tweet has been sponsored or is an ad. Important when celebrities or high-profile people start spouting on about their love of carpets or chocolate bars.

It might just seem polite to let followers on Twitter know that you are making a product endorsement, but in the US already people are starting to recognise these tags and the ASA in the UK is beginning to ask for these tags to be present when people could be led to believe an endorsement is a genuine celebrity opinion.

Don’t lie. How hard can that be?

The point is that agencies have been working on media sleight of hand since the first adverts were printed on papyrus. The art is not always about writing a moving ad like the Mad Men of the TV series but weighing risk against profit.

It’s an interesting point that the ASA cannot really do too much to hurt a company if it finds a campaign wanting. What it can do is damage a reputation and publicise false claims and lies.

Brands can decide whether they care about the judgement of the ASA and pretty much eat the costs if they choose.  This process could even be woven into the initial ideas for a campaign.

So what of ‘Don’t steal, don’t lie’? Farmer agreed that she spends a great deal of time reminding clients of these principles but as social media practice becomes more sophisticated, the problems are not always so clear-cut.

In some cases – say Nokia not really filming with a Lumia, the damage done required an apology and provided a big problem for a company fighting the likes of Apple in the coming holiday season.

For other firms, working out what you can get away with and concentrating on strategies to shrug off the ensuing firestorm, might be a better way to make front pages. Some say that all publicity is good publicity.

One thing that might help those who get into a spot of legal bother over their social media campaigns is the speed of the Web as we know it.

How many blunders can you recall in detail that happened throughout 2012? They may have seemed big headlines at the time, but today’s angry Tweet is tomorrow’s forgotten one-liner. If the collective memory of the social Web is relatively short, brands can hope that problems may fade a little more quickly than when headlines were turned into chip-paper.

That’s of course after surviving a circuit on history’s finest replication machine.

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