Protecting your brand

Paul McDonnell Paul McDonnell, head of McKinty and Wright’s media department, outlines some of the issues involved in reputation management and social media.

Engaging with the social media landscape is a common challenge for businesses of all types which brings the issues of employees’ use of social media, online advertising and defamation to the fore. By necessity, many businesses are keen to develop their social media presence to advertise and promote their products to a much wider audience.

The enthusiasm on the part of many businesses to embrace social media runs the risk of overlooking some of the pitfalls of going down that route. Companies should ensure that employees’ contracts of employment refer, either in direct or indirect terms, to the use of social media and that employment contracts are accompanied by an effective social media use policy which addresses the ramifications of improper use.

The law on online harassment of employees or denigration of competitors is developing rapidly. Such cases go beyond the scope of a contract of employment and an employer must be in a position to take disciplinary action and respond accordingly in other ways. If a proper policy is not in place, an employer may be unable to successfully defend a claim for unfair dismissal.

Many IT use policies were drafted at a time when the more extensive use of social media was not contemplated. This development has significantly increased the risks and liabilities facing a business.

For example, business advertising using social media has massively increased in recent years. However, as Snickers’ recent brush with the Advertising Standards Agency (ASA) illustrates, the ASA is actively examining social media platforms for Code breaches. In the Snickers campaign, celebrities including Rio Ferdinand were tasked with tweeting on subjects they were not normally associated with, followed by a final tweet promoting Snickers, prompting complaints of ‘hidden’ advertising. Although disagreeing with Snickers in that each tweet was indeed a marketing communication and thus should have been identifiably so, the ASA ruled that owing to the successive nature of the tweets, and the presence in the final tweet of #spon and references to the previous tweets that, in this very specific instance, no “hidden advertising” breach occurred. Consequently companies, when using social media to advertise, should be well versed in the requirements and potential pitfalls of social media advertising governance before embarking on any campaign.

Additionally, in seeking to build their online presence, some organisations are undertaking outsourcing exercises to PR and marketing companies. In doing so firms should be vigilant that any contracts agreed on provide the firm with the ability to manage its brand in a way which protects the company so as not to be left with a potential liability for comments or publications using its brand but which it had not directly approved.

Of course comments will not always come from companies themselves and firms should be aware of and prepared to engage with customer review sites such as Trip Advisor and Yelp. McKinty and Wright recently presented a seminar to the hospitality industry in Belfast on how businesses can manage their reputation online through positive interaction with, and detailed response plans to such websites.

A short but unfavourable comment on Twitter can have a very damaging impact on a business if sent to a sufficiently wide audience. There is also a concern that some individuals or companies are using malicious peer reviews against competitors in a time of deep economic difficulties. It is often hard to get a bad review taken down unless the company can find evidence that it is indeed malicious.

In one case, in the entertainment industry, a visitor to the venue tweeted (and exaggerated) a complaint every few minutes. This ‘trolling’ attracted more comments and while the company recognised the problem quickly, it had to respond in an ad hoc way i.e. engaging one-to-one with the visitor to channel those views and comments.

We would advise clients to have a strategy for dealing with that situation in place. If a business provides services that are likely to be reviewed, it is likely to face a ‘social media crisis’ at some point. A member of staff should be aware of the platforms and how to contain problems when they arise.

An effective brand management strategy will relate to several aspects of your business from IT to human resources and, crucially, your legal advisors as some legal issues will arise in most situations involving social media. McKinty and Wright’s social media, commercial and employment teams work in tandem to provide business with advice, assistance and training on protecting corporate brands online and are equipped to take rapid action to resolve internal and external threats to an organisation’s brand.

Paul McDonnell is a Specialist Litigation Partner and head of Media and Entertainment at McKinty and Wright.

For  media or entertainment enquiries Paul can be contacted at paul.mcdonnell@mckinty-wright.co.uk or on 028 9024 6751.

Follow Paul on Twitter: @_PaulMcDonnell_

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