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The Power of Language:
Social media in a crisis
Magnus Carter, Principal ConsultantMentor Communications Consultancy Ltd
Direct Marketing Association
Social Media Event Thursday 12th September 2013
We don’t need more words
• 645,000 words in the Oxford English
Dictionary
• 25,000 words used in Shakespeare
• 20,000 words commonly understood
• 10,000 words used in The Sun
The Golden Rule
• Get the language right, get the tone right –or fail to communicate
Sally Bercow gets it wrong
Sally Bercow: Described herself as a 'TOTAL irresponsible
eejit' in a tweet in November last year after asking why
McAlpine was a ‘trending topic’
Lord McAlpine: I forgive everyone - except Sally Bercow
Avoid ‘corporate speak’ 1
• “We are undertaking an accelerated
facility restructuring and acquisition
integration programme.” Allen Yurko, Siebe chief executive
• Translation: We’ve over-reached
ourselves, so we’ve had to sack 4,000
people.
Avoid ‘corporate speak’ 2
• “Root cause continues to be lack of mainframe resources due to
continuing record usage rates, year end processing demands, and
contingency-system-resource constraints. These were again
detected early with mitigations beginning immediately. System
resources from development/test regions have been allocated to
production to help with the load, and the team performed special
load balancing. IT will continue close systems monitoring and
other measures will continue in order to mitigate further
disruptions. This will be our final communication on this issue but
we will continue our communications if system issues persist.”
• Translation: Because everyone is using the same system at the
same time, the computers are slow and people started whining.
We stole some processing power from other stuff to help. Leave us
alone.
The Jargon Generator
Column 1 Column 2 Column 3
Client-oriented Input Evaluation
Peripheral Compatibility Strategy
High-Profile Awareness Rationale
Multi-disciplinary Viability Initiative
Inter-European Communications Function
Socio-Economic Analysis Package
Para-National Fragmentation Potential
Corporate Penetration Spin-off
Segmental Stratification Criteria
Integrated Database Infrastructure
Demographic Incentive Concept
Projected Feedback Indices
Getting down wif da kidz?
Bless: approval of something good
Blood: brother, from the same gang or area
Buggin': to freak out, panic
Crib: home
For real: approval of what has just been stated
G's: thousands (of pounds)
Ghost: to leave the area or hide something
Hold it down: keep quiet
Hood: a neighbourhood, the streets
Mandem: men, often from another gang
Shanked: stabbed
Swif: a promiscuous male
You feel me?: Do you understand
Corporate speak or wif da kidz?
• Neither!
• Who are we speaking to?
• How do we want to appear to them?
Putting the audience first
• It’s not about us, it’s about THEM
• Put yourself in their shoes
• How will they be feeling?
• What do they need to know?
• What do they need to hear?
When it all goes wrong
• The most powerful word in the language?
• SORRY
Kegworth Air Disaster, Jan 1989
The magic formula
• C
• A
• RE
The magic formula
• CONCERN
• ACTION
• REASSURANCE
What’s new?
• News travels fast 24-hour news culture and the internet
• DemocratisationSocial media means consumers & activists can have
influence on a par with companies and governmental
agencies
• InteractivityLoss of control and deference. It’s a conversation
Social media: written or spoken?
• In conversation, we speak as we think,
without reflection
• E-language is a conversation too
• BUT...
• Our ‘audience’ loses the benefit of tone,
gesture, body language (NON-VERBAL)
• SO...
• Meaning and intent can be misunderstood
Social media: written or spoken?
• That’s why we had to invent emoticons:
The communication challenge
• To be engaging, human and ‘chatty’
without losing meaning.
• SO...
• Pause, engage brain, review and revise
• BUT...
• Avoid becoming formal, pompous or
‘corporate’
A final thought
• With all due respect, it’s not rocket science. In
order to change our client-oriented
penetration paradigm going forward, we
require an integrated communications
strategy:
• KISS
A final thought
• With all due respect, it’s not rocket science. In
order to change our client-oriented
penetration paradigm going forward, we
require an integrated communications
strategy:
• Keep It Simple Stupid
Magnus Carter
www.mentorltd.co.uk
0117 305 8900
Direct Marketing Association
Social Media Event Thursday 12th September 2013
Social Media and Marketing
Tom Harding - Senior Associate
12 September 2013
osborneclarke.com
The next 30 minutes…
• Legal back to basics – EU Unfair Commercial Practices Directive and other regulation/restrictions
• Social media marketing – recent examples and lessons
• Twitter and Facebook promotions
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osborneclarke.com
Legal back to basics 1 - CPRs
• EU Unfair Commercial Practices Directive
• UK Implementation - Consumer Protection from Unfair Trading Regulations
2008 ("CPRs")
• in particular to social media:
– 'using content in the media to promote a product where a trader has paid for the
promotion without making that clear in the content or by images or sounds clearly
identifiable by the consumer (advertorial)' (Sch 1, para 11)
– 'falsely claiming or creating the impression that the trader is not acting for purposes
relating to his trade, business, craft or profession, or falsely representing oneself as a
consumer' (Sch 1, para 22)
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osborneclarke.com
Legal back to basics 2 -CAP Code
• ASA-enforced UK Code of Non-broadcast Advertising, Sales Promotion and Direct
Marketing ("Cap Code") applies to any marketing activity in social media provided it is:
– under the advertiser's control and directly connected with the supply or transfer of goods,
services, opportunities and gifts
• Non-paid for space expressly within remit (i.e. social media platforms and channels)
• In particular:
– marketing 'must be obviously identifiable as such' (para 2.1)
– marketing 'must not falsely claim or imply that the marketer is acting as a consumer or for
purposes outside its trade, business, craft or profession … [and] must make clear their
commercial intent, if that is not obvious from the context' (para 2.3)
– 'Marketers and publishers must make clear that advertorials are marketing' (para 2.4)
– 'Marketers must hold documentary evidence that a testimonial or endorsement used in a
marketing communication is genuine, unless it is obviously fictitious, and hold contact
details for the person who, or organisation that, gives it' (para 3.45)
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osborneclarke.com
Summary - basic rules
• Make it clear that an ad is an ad (and not someone's post)
– IBA/ISBA Guidelines
• disclose any payments
• adhere to any platform rules
• '#ad' Twitter disclosures
• Always remember the Cap Code
– must comply if UGC adopted, highlighted etc by advertiser
– re-Tweeting could trigger CAP Code testimonial rules
– see CAP's 'Rules of Social Engagement' Advice, June 2013
• make sure user generated content is appropriate, if it’s part of your advertising – expectation of
monitoring if invited comment/UGC
• make clear that it’s an ad
• target your audience appropriately
• take care with competitions
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osborneclarke.com
OFT vs Handpicked Media (Dec 2010)
• Handpicked Media operates a commercial blogging
network
• As part of its client services, it engages bloggers to
provide editorial coverage of topics e.g. fashion, music
• Blogs include favourable references to Handpick's clients
• Appear on various sites including Twitter
• No mention of commercial connection between blogger
and brands
• OFT imposed undertakings
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osborneclarke.com
Product reviewsebuyer and the ASA (Dec 2011)
• Website for online electrical goods Ebuyer.com
• "Foehn & Hirsch Portable WiFi Internet Radio (black)" and showed
four and a half stars
• Further text states "17 reviews", all favourable
• Complainant's negative review does not feature, complains to the
ASA
• Ebuyer: "current filters are pre-set to show those ratings which are
most useful and these will be more positive than negative"
• UPHELD
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osborneclarke.com
TripAdvisor and the ASA (Feb 2012)
• The TripAdvisor website states
• "read reviews from real travellers…offers trusted advice…more than
50 million honest travel reviews"
• on review pages is TripAdvisor logo and "Reviews you can trust"
• KwikChex Ltd - complains to the ASA that the above is misleading as
TripAdvisor does not verify reviews and cannot not prove they are
genuine
• TripAdviser - no review site can guarantee it is 100% fraud free. Not
practical to manually screen all reviews pre post. All reviewers have to
click to confirm that their review is honest and genuine
• UPHELD
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osborneclarke.com
Moonlight Apartment Durham and the ASA (April 2012)
• 'Durham's most luxurious self-catering apartment', featuring a
'ridiculously well-equipped designer kitchen'.
• Incorporated a TripAdvisor widget, but also a standalone review
• "...This TripAdvisor Member: Liked ? Location, personal attention to
details Disliked ? nothing Mazza08 Dubai, September 2008".
• KwikChex Ltd - complains to the ASA that MAD could not substantiate
review was genuine
• MAD – not always possible to identify TA reviewers, but only one
visitor from Dubai. Later verified the review.
• UPHELD: Contact details and proof that testimonial is genuine are
needed pre-publication
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osborneclarke.com
Mars/ Rio Ferdinand and the ASA (March 2012)
• Rio Ferdinand, Katie Price & others start posting a series of 5 odd
Tweets ending with their photo with a Snickers bar
• Last Tweets link to an @snickersUKhungry#spon account set up by
Mars
• Unclear whether the personalities are paid by Mars
• Mars – only last Tweet was marketing, or first 4 only became
marketing when the last was revealed
• NOT UPHELD
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osborneclarke.com
New Era Global Sports Management/Rio Ferdinand and the ASA again (April 2012)
• Rio Ferdinand posts a series of Tweets regarding a competition to
give away football tickets
• Users had to download the Rio Ferdinand App to enter
• Complainant argued that the promotion was misleading because it did
not make clear the competition T&Cs, including how the winner was
picked at random
• NEGSM – entry conditions were made clear across the Tweets
• NOT UPHELD BY ASA
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osborneclarke.com
Toni and Guy and the ASA(July 2012)
• Gemma Collins tweets: "10% off @Toniandguylside I have the most
amazeballs hair colour and condition best salon ever call and say #gemma for
discount xx".
• Toni and guy: While the tweets did not include the terms "marketing",
"sponsored" or "advertisement", the mention of a 10% discount made it clear
that the tweets were marketing communications
• UPHELD
• the average Twitter user would follow a number of people on Twitter and
receive a number of tweets throughout the day, which they might scroll
through quickly
• the CAP Code did not just require ads to be identifiable as marketing
communications but that they must be obviously identifiable as such
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osborneclarke.com
Antica Sambuca
and the (ASA Jan 2013)
• Facebook Page - www.facebook.com/AnticaSambucaUK/photos
• Uploaded UGC photos of people in a bar
• ANTICA: photographs were not advertising, nor a sales promotion or
a marketing communication to which the CAP Code applied.
• ASA: photos were marketing in non-paid for space
• '…the images showed that an abundance of alcohol was available
and had been consumed …the poses and behaviour shown in
several of the images suggested that some of the individuals present
had consumed a large quantity of alcohol and were intoxicated.'
• UPHELD – promoted excessive drinking/irresponsible
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osborneclarke.com
Social media promotions on Twitter
• See Twitter's Guidelines for Contests on Twitter which
require:
• promotion rules should disqualify entrants using multiple
accounts
• repeated re-Tweets be discouraged (e.g. "whoever retweets
the most wins" mechanic not permitted)
• ask users to include an @reply to you in their update so you
can see all the entries
67
osborneclarke.com
Social media promotions on Facebook
• Promotions terms updated 27th August 2013:
• no longer a requirement to only run via an app
• can now:
• collect entries by having users post on the Page or comment/like a
Page post
• collect entries by having users message the Page
• utilize likes as a voting mechanism
• must state that the promotion is in no way sponsored, endorsed,
administered or associated with Facebook
68
osborneclarke.com
T&Cs for social media promotions
• Public voting
• How many votes during voting period?
• Voting criteria?
• Improper voting (inducements/automated systems)
• How to resolve a tie?
• IP assignment/licence and moral rights
• Original work? Third party content or involvement?
• Inappropriate content?
• Future use of entries?
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Tracing Cybermen
Ben Holt
Associate Director
osborneclarke.com
What I'll be covering
• Recent case law in digital media
• Uncovering hidden identities
• Getting offensive material removed
• User generated content and liability of host
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osborneclarke.com
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Brookes v Facebook
• ‘Keep your chin up, Frankie, they’ll move on to someone else
soon.’
• Norwich Pharmacal
• “Lawyers, like vultures, have been waiting for this moment.
Welcome to their beanfeast”
• Nothing new?
osborneclarke.com
74
McAlpine v Bercow[2013] EWHC 1342 (QB)
• "[The] ruling should be seen as a warning to all social media
users."
• Tweet 1:"Why is Lord McAlpine trending? *Innocent face*"
• Tweet 2: “Final on McAlpine: am VERY sorry for inadvertently
fanning the flames. But I tweet as me, forgetting that to some of u
I am Mrs bloody Speaker”.
• Mr Justice Tugenhadt: "…insincere and ironical..."?
•
osborneclarke.com
75
Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd)[2012] UKSC 55
Lord Kerr:
“An “intense focus” on the rights being claimed in individual cases does
not lead to the conclusion that the individuals who will be affected by the
grant of the order will have been unfairly or oppressively treated. On the
contrary, all that will be revealed is the identity of those who have,
apparently, engaged in the sale and purchase of tickets in stark breach of
the terms on which those tickets have been supplied by the RFU.”
osborneclarke.com
76
Tamiz v Google Inc[2013] EWCA Civ 68
• An "unassailable defence"?
• Google = publisher?
• The owner of a wall “festooned with defamatory graffiti” or of a
golf club notice board?
• Different outcome if served in jurisdiction?
osborneclarke.com
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Scenarios
Issues
• Defamation
• Intellectual Property
• Cyber-squatting
• Unlawful Trading
• Breach of Restrictive Covenants
• Harassment
• Other breaches
osborneclarke.com
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Scenarios
Common Media
• Internet Forums
• Social Networking Sites
• Bespoke Websites
• User Generated Content
osborneclarke.com
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Identifying the Author
• The Website
• Whois
• Legal Options:
– CPR 31.16: Pre-action disclosure
– CPR 31.17: Third-party disclosure
– CPR 31.18: Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133
osborneclarke.com
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Removing
• Host / ISP
– Report abuse
– Godfrey v Demon Internet Service [2001] QB 201
– "E-Commerce Directive" (Directive 2000/31/EC)
– Lawyer’s letter / Infringement or "take down" notice
• Author
– Injunction?
• Nominet
– Dispute resolution service
osborneclarke.com
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User Generated Content
• Secondary publisher / innocent dissemination
• Full moderation, some or blind eye?
• "Pub Talk": Sheffield Wednesday v Hargreaves
[2007] EWHC 2375 (QB)
• The Future: Defamation Act 2013
• "serious harm"
• Responsibility for user-generated content
osborneclarke.com
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Contact Details
Ben Holt
Commercial Litigation
Associate Director
T: 0117 917 3596
F: 0117 917 3597
