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Lawyers Brenda Pritchard and Susan Vogt recently released the 5th edition of Advertising and Marketing Law in Canada. Published by LexisNexis Canada in association with ACA, it’s a comprehensive reference tool that will help advertisers and marketers better understand the breadth and complexities of Canadian regulatory law. This excerpt, contributed by Gowling’s Associate Daniel Cole, looks at legal considerations for social media marketing.

PREPARING TO PLAY IN THE SOCIAL MEDIA SPACE

The question of whether or not to enter the social media space has effectively become moot. The simple fact remains that almost every business is already there by default through commentary in countless online spaces about the company and its products/services. As noted at the beginning of this chapter, the necessary question has, therefore, become how well can your organization engage in social media?

Assuming your company has decided to engage in social media (in one form or another), here are a few additional considerations to keep in mind:

1. Understanding the Space
   Social media communications are often informal and immediate. In order to operate effectively in this space, your organization needs to have the ability to operate on a “breaking news” basis. If you have something to say through social media, you often do not have weeks or even days to refine your message and have it vetted by each corporate stakeholder (including the legal team). Most often, you have to say it immediately, or your message risks losing its power and your social media platform could lose credibility.The problem, of course, with informal “breaking news” type communications is the lack of oversight. Without multiple levels of review and the benefit of a “pause” to consider the wisdom, accuracy and appropriateness of the message, multiple dangers abound. These dangers include (to name a few): inaccurate claims; improper trade-mark use; unlawful or unwanted disclosure of confidential information; trade libel; breach of sector-specific laws; infringement of third party intellectual property rights; and misappropriation of personality. In addition, there always remains the issue of off-message communications damaging the brand’s reputation.As noted throughout this chapter, there is no fail-safe means of avoiding all of these dangers. Even if you employ a lawyer with a marketing background to draft all your social media communications and policies, the speed and informality required in social media simply means that mistakes will be made. This is, simply put, the reality of playing in the social space.
2. Insurance
   Aside from typical advertising insurance, it is important to consider whether or not additional insurance is required to cover unique risks associated with executing a social media advertising campaign. For example, does your existing comprehensive general, media or errors and omissions insurance policy cover problematic user-generated content? This is a complex issue. Consult your insurer.
3. Choosing a Platform
   At the initial stage of choosing a platform, your choice is likely going to involve one or more of the “Big 5” (i.e., Facebook, Twitter, Pinterest, Instagram and YouTube). No matter which site(s) you choose, however, it will be essential to determine whether or not it can be used to meet the requirements of your advertising campaign. Of particular importance in this regard are each site’s terms of use.As discussed above, most social media platforms include terms of use that define a user’s rights and obligations when using the site. Consequently, an important legal consideration at the pre-implementation stage is to determine whether or not the terms of use for a given social media platform permit the campaign under consideration.The analysis that you need to do in relation to each site must (at a minimum) attempt to answer the following questions:
   • Can the site be used for “commercial” purposes?
   • Are there specific rules regarding advertising?
   • Are there specific rules regarding contests, promotions and other
     offers?
   • Are there specific rules regarding logo (or brand asset) use and/or
     creating an affiliation (implied or direct) between the advertiser and
     the social media site?
   • Do the terms of use include provisions regarding mandatory
     licensing? If so, it is important to consider whether or not such
     provisions may ultimately result in a significant devaluation of an
     advertiser’s core assets.
   • Are there licence provisions that govern the advertiser’s use of
     materials that other users post on the site (i.e., can you use materials
     posted on your fanpage for other purposes — e.g., advertising)? If
     so, are there specific rules and/or limitations regarding how the
     content can (or cannot) be used?

   Overall, it is critical to understand that a failure to adhere to a social
   media site’s terms of use may result in suspension of the advertiser or its account. This could, of course, cause significant reputational and brand damage. Further, to the extent that a social media site’s terms of use conflict with an advertiser’s contractual obligations, the advertiser may be exposed to contractual liability.

4. Controlling the Message Across Channels
   Great care should be taken to help ensure that there is consistency in
   your organization’s messaging (both between various social media channels and between social media channels and other traditional forms of advertising). In short, it is critical to understand that your Facebook fanpage and Twitter account are not merely isolated forms of communication that operate independently of other more traditional advertising messages. While social media messages will undoubtedly be tailored to the specific target audience and/or platform (e.g., 140-character tweets), the underlying messages (including offers, claims and other relevant information) should always be consistent across channels. Any inconsistencies can ultimately lead to both consumer confusion and harm to your brand’s reputation.

CONCLUSION

It has been said that the return on investment of engaging in social media is that your business will still exist in five years. Whether or not this is true for your particular organization could depend on any number of factors. However, the fact remains that whether you choose to actively play in this space or not, social media is here to stay. It is impossible to predict how social media — and the laws impacting its use in advertising and marketing — will continue to evolve. The best that companies can do is to buckle up and continue to enjoy the ride … armed with comprehensive policies and alert to this constantly changing world.

ACA members: Join Gowlings’ Partner, Brian Fraser, on November 10 to have your questions about Advertising and Marketing Law in Canada answered during an ACA webinar.