Using social media to commercialise your brand
Social media is becoming a key element of many brands' marketing strategy. It has some great advantages over more traditional marketing: amongst other things, it allows businesses to connect directly with consumers and leverage their enthusiasm for a brand. However, social media marketing also gives rise to some potential commercial and intellectual property issues.
Brands are increasingly using social media to promote links with, or endorsements from, celebrities as well as leveraging the popularity of bloggers and other social influencers.
The Advertising Standards Authority (ASA) is paying increased attention to advertising via social media and endorsements on social media are subject to the CAP Code.
As such, endorsements must make clear that that they are marketing communications rather than personal messages. For example, the ASA held that an Instagram video featuring Millie Mackintosh doing yoga was not obviously identifiable as an advertisement for J2O. One way for a business to make clear that a post is a marketing communication is to require endorsers to include “#ad” in the post. Ideally, this should be a contractual obligation for the endorser.
Compliance with the CAP Code can be trickier where an endorser is sent a product to review. Guidance suggests that if a blogger is paid for a review, this should be made clear. However, it is uncertain whether providing free products amounts to a payment in kind. Ideally an endorser will make an honest statement about whether they have been asked to review the product and/or paid to do so. However, it can be difficult for brands to control what bloggers will put in their communications. Brands should aim to get contractual control over endorsers' communications if at all possible to control this risk.
Brands should be careful about making reference to a celebrity using their goods or services or otherwise using their image in relation to marketing where the celebrity does not endorse the brand directly. Although there is no coherent image right in the UK, breach of confidence and passing-off actions have previously been used to prevent unauthorised use of celebrity images (such as Rihanna's successful claim against Topshop for use of her image on a t-shirt). Brands should bear in mind that where images are published on the internet, celebrities might take advantage of more favourable image rights laws in other jurisdictions to bring false endorsement claims. It is therefore sensible to seek permission to a celebrity's name or image or to use them in a way which makes clear that the celebrity has not formally endorsed the brand.
The immediate nature of social media, its visibility to large numbers of consumers and the press means that a brand can be quickly and easily damaged by an ill-conceived tweet or misguided marketing strategy.
To avoid brand damage, it is advisable to put in place social media policies which define the boundaries of how a business and its employees should communicate and interact on social media. At a corporate level, having a style guide for social media posts can help to ensure that content posted by a company conveys the right brand message. It is also advisable to have a strategy for dealing with customer dialogues so that responsible employees are polite and know to disengage at the right time without getting into arguments.
An employee social media policy should address posts made both in a professional and a personal capacity and should restrict employees from saying anything that has the potential to damage the company or brand including disclosing confidential information about or commenting negatively on the company or its customers. A policy is only effective if it is understood and acted upon by employees, such that it becomes an embedded part of how your organisation does business. Communicating the policy in a readily digestible form, and often enough to be front-of-mind, is key.
False social media accounts can be used by third parties for potentially damaging purposes. It is recommended that businesses monitor social media activity which mentions its brand and take action depending on the type of infringement.
Social media can pose some risks and challenges to brands. However, with proper awareness of the legal boundaries and with effective policies in place, brands should feel confident to exploit this exciting way to engage with their consumers.