blake morgan's seo brand seminar - reputational risk

Brand Power: How to build and

protect your brand online

Reputational Risk

03 March 2015

Ben Evans

Reputational Risk

• Key area social media but the same general issues apply to website

content etc.

• Increasingly issues focus on Facebook and Twitter.

• Not surprising: Facebook 1.4 billion users & Twitter 300 million users.

• Also issues arising on the likes of TripAdvisor (and other review

sites) and Youtube.

• 3 main issues:

– Negative commentary or comments

– Impersonation accounts

– Copying of content

Content source

• External or internal.

• Need policies in place regarding employee, and contractor, use of social

media.

• Useful to differentiate between account types i.e.:

– Personal accounts i.e. Ben Evans

– Branded accounts i.e. Ben Evans of Blake Morgan LLP

– Corporate accounts i.e. Blake Morgan LLP

• Employment and consultancy contracts should cover use of social

media and social media accounts - including ownership of the accounts

and/or contacts.

Negative online comments

• Focus: TripAdvisor

TripAdvisor

TripAdvisor

TripAdvisor

Negative comments

• Are they true? if so then best to respond directly

• If untrue then could be defamatory or a malicious falsehood:

– Defamation (libel) – publishing an untrue statement about a

person (or entity) that makes people think worse of that person

(or business).

– Defences include truth and, importantly, honest opinion.

– Malicious falsehood – maliciously publishing an untrue statement

that causes damage (financial loss)

– Defence of truth but not of honest opinion per se

Negative comments

• TripAdvisor prohibits (amongst other things):

– Any message, data, information, text, music, sound, photos,

graphics, code or any other material ("Content") that is false,

unlawful, misleading, libelous, defamatory, obscene,

pornographic, indecent, lewd, suggestive, harassing, or

advocates harassment of another person, threatening, invasive

of privacy or publicity rights, abusive, inflammatory, fraudulent or

otherwise objectionable;

Negative comments

• Notice and takedown form:

http://www.tripadvisor.co.uk/pages/noticetakedown.html

• Must explain:

– where the comment is;

– what you claim is defamatory;

– why it is defamatory;

– why it is untrue; and

– give a declaration that what you have said is true.

Negative comments

• TripAdvisor then decides whether or not to take down the comments

or to request the poster amends.

• If decline to take down then life becomes harder, options would be to:

– Take action against the poster (if can be identified)

– Seek a court order forcing TripAdvisor to disclose identity of

poster (unlikely to comply unless local court)

– Take action against TripAdvisor as publisher of statement (not

ideal due to size and jurisdiction issues)

• If possible always best to deal with issues through responding to

poster, internet users are becoming increasingly savvy to ‘trolls’ and

will take negative reviews with a pinch of salt.

Impersonation accounts

• Focus: Twitter

Twitter

Twitter

Twitter

Impersonation accounts

• Parody, newsfeed, fan and other such accounts are allowed on

Twitter (and Facebook) provided:

– The avatar (logo) used is not identical to a trade mark of the

subject or is the copyright work of that, or another, party;

– The account name is not be the exact name of the account

subject, or its trade mark, without some other distinguishing

word, such as "not," "fake," or "fan”; and

– Communication with other users should not deceive or mislead

others about the account holder’s identity.

• If doesn’t comply then it is possible to get the account suspended

pending rectification of the issues or a permanent suspension.

Impersonation accounts

• Need to rely on trade mark rights, whether unregistered or

registered.

• Complaint filed online and needs the following information:

– Username of the reported account;

– Your company name, Twitter account and website:

– Your trade mark:

– Registration details (if registered); Contact details

– Description of confusion (e.g., passing off as your company,

including specific descriptions of content or behavior):

– Requested Action (e.g., removal of violating account or transfer

of trademarked username to an existing company account).

Impersonation accounts

• Once complaint filed you will receive an immediate rejection from

Twitter.

• Don’t be put off, make sure you have saved your complaint and re-

submit it to the new link/address provided.

• Twitter should then action within 24 hours and will either request

further information, suspend the account or reject your complaint.

Impersonation accounts

• Facebook? Very similar, but need slightly more information:

– Contact information.

– The specific word, symbol, etc. in which you claim trade mark rights.

– The basis for your claim of trade mark rights (such as a national or

community registration), including registration number, if applicable.

– The country or jurisdiction in which you claim trade mark rights.

– The category of goods and/or services for which you assert rights.

– URLs of the infringing content.

– A description of how you believe this content infringes your trade mark.

– If you are not the rights holder, an explanation of your relationship to the

rights holder.

Impersonation accounts

– A declaration that use of the mark is not authorized by the trade mark

owner, its agent, or the law,

– Confirmation that the information in your notice is accurate, and

– A declaration, under penalty of perjury, that you are the owner or

authorized to act on behalf of the owner of a trade mark that is allegedly

infringed (serious stuff then).

– Your electronic signature or physical signature.

• Facebook will action complaint (no timescales) and will either request further

information, suspend the account or reject your complaint.

• If account suspended Facebook will pass your contact details on to the

account holder to discuss matter directly.

Copying of content

• Focus: Youtube

Youtube

Youtube

Copying of content

• Photo, image, video, music, article etc all copyright works.

• Copying of a copyright work, or a substantial part of it, is copyright

infringement.

• If therefore a third party uses your photos on their Facebook profile,

or uploads your corporate video to Youtube then likely infringing

copyright.

• But, check who owns it. Author is first owner, may not be you.

Copying of content

• Youtube has sophisticated notice and takedown procedure (DMCA).

• Content can be taken down within hours.

• Also frequently an issue on Facebook, particularly with photos, very similar

to trade mark complaint, need:

– Contact information.

– Description of the copyrighted work that you claim has been infringed.

– Description of the content that you claim infringes your copyright.

– URLs of the infringing content.

– A declaration that use of copyright content is not authorized by the

owner, its agent, or the law.

– Confirmation that the information in your notice is accurate, and

Copying of content

– A declaration, under penalty of perjury, that you are the owner or

authorized to act on behalf of the owner of an exclusive copyright that is

allegedly infringed.

– Your electronic signature or physical signature.

• Facebook will action the complaint (no timescales) and will either request

further information, remove the content or reject your complaint.

• If content removed Facebook will pass your contact details on to the account

holder to discuss matter directly.

• In all likelihood if you pull together the necessary information then they will

remove the content.

Reoccurring problems

• If you have frequent problems on particular platforms then you will

need to ensure that you keep all necessary information close to hand

in order that complaints can be filed without delay.

• If you have frequent problems from same source, or suspected same

source, then will want to:

– Take direct action against the infringer (if they can be identified)

– Seek a court order forcing platform to disclose identity of poster

(unlikely to comply unless local court)

Thank you

Ben Evans

Senior Solicitor

Blake Morgan

Ben.evans@blakemorgan.co.uk

Questions?