01/08/11

By Des Burley, Partner and Intellectual Property lawyer at Martineau.

Social media provides exciting opportunities for businesses to raise their profile, forge new relationships and conduct business. For any organisation, the use of social media can serve as an invaluable means of pursuing online marketing. However, it must not be forgotten that there are legal risks around this.

1.USE OF FACEBOOK AND ADVERTISING RULES

You may use your company’s website and Facebook as a shop window to promote your goods and services. If you do, you need to consider the application of advertising rules.
Any advertising conducted through your own website, or through other non-paid for online space (such as on Facebook and Twitter) now falls under the watchful eye of the Advertising Standards Authority (ASA).

The rules are complex, and the requirements can depend upon the products and services which you are marketing and to whom. But, the primary requirements are always that your advertising should be legal, decent, honest and truthful.

It is very important that you comply with the rules. There can be serious repercussions for falling foul of the rules. Complaints made will be investigated by the ASA and may result in an adverse adjudication (and resulting bad publicity), so you’ll need to make sure that your website is compliant. A good commercial/IP lawyer will be able to assist you with this.

2.COMPARATIVE ADVERTISING - THE DOS AND DON’TS.

If you are using or intend to use your competitor’s registered trade mark as part of your online marketing, then you need to be aware of what you can and cannot do with it.

In its simplest form, ’comparative advertising‘ is where you compare your goods or services with your competitors; or where you use or refer to your competitor’s trade mark as a way of praising your own goods or services. For example, "Our brand is better/quicker/cheaper than Brand Z".

Under trade mark law, comparative advertising is allowed in certain circumstances. For instance, you can only use your competitor’s mark in ‘good faith’ and in accordance with honest commercial practices.

What is ‘honest’ will be judged on an objective and case-by-case basis. It would be for the offended trade mark owner (your competitor) to establish on the facts that your advertisement, which makes the comparison, is considered dishonest by ‘members of a reasonable audience’.

But, it certainly means that you can’t use your competitors’ trade mark in a way which:

•harms the mark; or which

•takes unfair advantage of the distinctive character or reputation of that trade mark.

If you do either of these, you could land in trouble for infringing your competitor’s trade mark. So, before you embark on an online comparative advertising campaign, you should seek legal advice. This is especially advisable as there are various other rules (e.g. advertising rules) and laws that you need to comply with other than those associated just with trade marks.

3.TWITTER — ARE YOU AVOIDING THE COPYRIGHT AND DEFAMATION PITFALLS?

As useful as tweeting and re-tweeting can be as an online marketing tool, it is not devoid of legal risks. The risk of copyright infringement is one. Although only 140 characters long, original “tweets” may attract copyright. Copying the whole or a substantial part of tweeted text may land a user in hot water, if appropriate consents have not been obtained.

Defaming someone’s character (such as your competitor) is another risk to watch out for. In an attempt to outwit another user’s tweet, whether by parody or sarcasm, it is easy to see how someone could fall down the slippery defamation slope. Thought before tweeting is therefore paramount.

Twitter and tweeting aside, any organisation which has an interactive forum on their website, (which also offers the facility for users to blog, upload material or post comments) should have the right contractual protection in place. This would include a proper set of website terms of use (to help cover off risk) and a good acceptable use policy. This policy sets the bar for the content standard of posted material. It lays down what is and is not acceptable. It should also include a swift take-down policy to deal with allegedly defamatory comments.

Social media need not be a minefield. If you are unsure, seek advice. Use your lawyer as an enabler rather than someone to go to when mistakes have been made either by you or another party.

The above are a just a few examples of the legal risks that organisations may face, when the lines of online marketing and social media meet.