Blake Lapthorn social media seminar held in its London office on 12 October 2011.

1. Employment law and social
media
12 October 2011
A look at the legal and practical issues arising from
the use of social and professional networking
Oliver Weiss
Senior solicitor
oliver.weiss@bllaw.co.uk

2. Context
Types of social media
– Facebook
– LinkedIn
– Twitter
Social media usage
– 600 million Facebook users worldwide
– 100 million LinkedIn users worldwide of which approximately
5 million in UK
– 200 million users of Twitter

3. Context
Additional statistics
– Facebook has more traffic per week in US than Google
– One in five divorces blamed on Facebook
– 25% of FTSE 100 companies hire through LinkedIn
– Approximately one new joiner to LinkedIn every second; 1
million people joining every twelve days

4. Social media in the workplace
Implications of using Facebook and LinkedIn at work
Some employers have banned access to social media
completely
But access to social media valued by employers
– internal communications
– recruitment
– marketing
Social media becoming the “norm”

5. Misconduct through use of social media
Bullying or criticising colleagues
– comments posted on social media sites can amount to gross
misconduct
– important to consider carefully both the nature of what has
been posted and all circumstances
Inappropriate comments and/or bringing the employer into
disrepute
– this can amount to gross misconduct even if ostensibly
disseminated to personal friends/contacts only

6. Misconduct through use of social media

7. Misconduct through use of social media
Criticising employer
– Stephens v Halfords: store manager who criticised
redundancy process was held to have been unfairly
dismissed
Comments about customers
– in Preece v Wetherspoons a bar employee was dismissed
after making disparaging comments about customers on
Facebook
Revealing confidential information
– revealing strategic decisions or details of internal matters
which have yet to be announced

8. Social media as evidence of misconduct
****

9. Social media as evidence of misconduct
Evidence of unauthorised absence
– be cautious about jumping to conclusions on the basis of
comments or pictures on Facebook as they do not always
tell the whole story
Exercise caution when using social media as a tool of
investigation

10. Data Protection and Human Rights
Data Protection
– employer must comply with its obligations under the Data
Protection Act
– relevant to recruitment and candidate vetting
– ensure that employees do not disclose personal data
belonging to colleagues
Human Rights
– article 8: right to respect for private and family life
– article 10: right to freedom of expression

11. Employer could be liable for comments made by
employees
Discriminatory comments
– eg racist and sexist comments made by one employee
against another
– employer has a defence if it can show that it has taken
reasonable steps to prevent such discriminatory acts
– policies and training key to avoiding liability
Defamation

12. Social media after employment has ended
Soliciting or dealing with clients
– LinkedIn effectively amounts to a database of contacts
– Who “owns” the LinkedIn database? This is problematic
because often it consists of a combination of work and
personal contacts
– Particularly relevant in context of sales or recruitment based
businesses where customer databases are very important

13. Social media after employment has ended
Soliciting or dealing with clients contd.
– Do restrictive covenants in contract prevent employee from
having contact through LinkedIn?
– Courts showing willingness to treat such communications in
same way as communications on any other medium
– Difficult to ascertain what degree of communication is
required
– “Solicitation” harder to establish than mere “dealing” but
what is “dealing” in this context?

14. Social media after employment has ended
Breach of confidentiality
– Arguably clear from database who “customers” are. Are
these contacts confidential?
– Database Regulations and Intellectual Property rights
References
– be careful not to provide negligent references

15. Practical solutions - policies
Employer must have clear written policies dealing with social
media. Such a policy should:
– set clear parameters of what is and what is not acceptable
use for Facebook, LinkedIn etc
– clearly state that infringement of the policy could result in
disciplinary action
– make it clear that employer will monitor usage to ensure
compliance with the policy

16. Practical solutions - policies
The policy should be tailored to specific needs of the business
– May require personal use to be restricted to outside of
normal working hours
– May deal with how LinkedIn contacts will be treated after
termination of employment
The employer should consult with employees as to what should
be contained in such a policy
Policy should be kept as simple as possible and must be
dynamic

17. Social Media Marketing
12 October 2011
Simon Stokes
Partner
simon.stokes@bllaw.co.uk

18. This presentation
What is social media marketing?
Legal risks
Managing legal risk
Q&A

19. What is social media marketing?
Brands need to become 'friends' with customers on Twitter and Facebook
The social web offers companies the chance to 'befriend' their potential customers.
(Daily Telegraph 02/10/11)

20. What is social media marketing?
The use of web 2.0 and social networking for
marketing purposes
– Twitter, Facebook, Flickr
– Facebook – aims to be “web within the web” with
embedded apps to access other sites/content
– You Tube
– blogs/UGC
Use of technology for marketing purposes often with
a social media element
– i-phone applications
– advergames

21. What is social media marketing?
Example of campaigns
Dulux “let's colour™” Project (2010-11)
Heavy use of video content
Blogs/UGC (eg users upload videos etc)
Often advertising-agency led (initially)

22. Legal risks
Smm is about “brands having conversations” - all
conversations have risks
– users blog disparaging/defamatory comments (held
to be "published" by the firm?)
– unwittingly infringe others' rights by reusing social
media content without permission
– data protection, advertising laws and/or Financial
Services Authority (FSA) rules on financial
promotions may be broken
– firms may lose control of their web presence
through uncontrolled activities by users/tweeters

23. Managing legal risk (IPR, general)
IPR (if generating new IPR – brands, trademarks,
domain names – protect)
– Register key brands
– Ensure domain names in your name
Contracts (agencies, sm sites)
Policies (internal - HR)
User terms (blogs, data collection)
Advertising and consumer law

24. Managing legal risk (contracts)
Contract – agency
– Campaigns often advertising agency led initially
– Get contract reviewed to ensure you protect:
your brand and other IPR (especially domain
names, ownership of video content etc)
customer data (in line with DPA 1998)
ability to take back in-house and transfer fan
sites back to you

25. Managing legal risk (policies)
HR Policies
– HR policies need to be reviewed
– Address use by staff of smm (not just dealing
with misuse of employer's time – what if
employees seek to comment about the
business? Or you tell them to?)
– Clarify roles and responsibilities of those
permitted to use smm for marketing purposes

26. Managing legal risk (user terms)
User terms
– Privacy policy - ownership and control of user
data
IPR
Data protection
– Blogs/UGC
Rights to use
Liability as publisher?
To moderate/not to moderate
Notice and take down
Blog terms/acceptable use policy

27. Managing legal risk (legal compliance)
Consumer law compliance
– Consumer Protection from Unfair Trading
Regulations 2008 – general duty not to trade
unfairly (from 26 May 2008)
Unfair if a misleading omission
Unfair to use editorial content to promote a
product where promotion paid for without
making that clear
OFT enforces
Take care if you pay a blogger/have
employees blog
See OFT enforcement action against
Handpicked Media (December 2010)

28. Managing legal risk (legal compliance)
Advertising law compliance
– Self-regulation: Latest UK Code of Non-
Broadcast Advertising, Sales Promotions and
Direct Marketing (12th edn) came into force on
September 1, 2010. This Code (CAP Code) is
enforced by the Advertising Standards
Authority (“ASA”)
– CAP Code – general and specific (eg
gambling, medicines, tobacco etc)
– legal, decent, honest and truthful
– Sanctions: adverse publicity,
denial/withdrawal of media space, OFT
intervention

29. Managing legal risk (legal compliance)
CAP Code extended from 1 March 2011
"Advertisements and other marketing
communications by or from companies,
organisations or sole traders on their own websites,
or in other non-paid-for space online under their
control, that are directly connected with the supply
or transfer of goods, services, opportunities and
gifts, or which consist of direct solicitations of
donations as part of their own fund-raising
activities."
editorial, public relations eg press releases and
investor relations material remain outside the
jurisdiction of the ASA.

30. Managing legal risk (legal compliance)
New sanctions
– Providing details of an advertiser and the
non-compliant marketing communication on
a special part of the ASA website.
– Removal of paid-for search advertising –ads
that link to the page hosting the non-compliant
marketing communication may be removed with
the agreement of the search engines.
– ASA paid-for search advertisements - the
ASA could place advertisements online
highlighting an advertiser’s continued non-
compliance.

31. Managing legal risk (legal compliance)
Recent Social Media ASA Adjudication (ASA
Adjudication on Cell Drinks 3 August 2011)
– Promotion of alcoholic drink “Cell Drink” through
video ads on YouTube and a linked Facebook
page
– Sensitive area – alcohol promotion – risk of
promoting to under 18s
– Was a breach of the Code for various reasons
(eg irresponsible – associated alcohol
consumption and daring feats) but also a
specific SMM issue – “age gates” on YouTube
and Facebook not sufficient here (under 18s
might still be able to access them and ads
would appeal to under 18s – advertiser couldn’t
rely on an age gate here)

32. Conclusion – Dos and Don'ts
Do
– Protect IPR (trade marks, domain names)
– Review contracts with agencies and smm
sites
– Ensure use of adequate privacy and blog
policies
– Institute internal sm HR policies (part of
wider HR policies re social media generally)
– Vet copy for legal compliance
Don't
– Encourage your employees to blog or promote
products without careful controls

33. Q&A
Questions?