FREE BOOK CHAPTER: from ‘A Practical Guide to Digital and Social Media Law for Lawyers’ by Sherree Westell

CHAPTER TWO
SETTING THE SCENE

Introduction and objectives

Popular social networking sites these days seem to be used around the world by so many people1 that it is easy to assume everyone uses the services and is familiar with all of the activities that take place digitally online and via social media.

Nevertheless, before exploring some of the key legal risks for business and the ways in which they can be managed and reduced, it is worthwhile clarifying the subject matter and typical activities undertaken by many businesses.

This chapter considers:

  • What is digital and social media?

    • Definitions

    • Key characteristics

    • Examples of site and services

    • Business models and jargon

  • How do businesses use digital and social media?

    • Common objectives

    • Examples

  • How should legal risks associated with digital and social media be evaluated?


What is digital and social media?

Definitions

Digital media refers simply to content (whether that be text, graphics, images, video, audio or some other form of content) that is in digitised form and so can be transmitted over computer networks and the internet.

Social media is defined in the Oxford English dictionary as:

Websites and applications that enable users to create and share content or to participate in social networking.”

and it defines social networking as:

The use of dedicated websites and applications to interact with other users, or to find people with similar interests to one’s own.”

The above definitions capture key elements of social media and the key defining characteristic are considered in a bit more detail below.


Key characteristics

It is some of the key and defining characteristics of social media that can contribute towards the level of risk perceived by businesses in actively engaging in social media.

Dialogue

Engaging via social media is not intended to be a monologue; the services encourage conversation and communication between participants and users.

Sharing

Social media encourages users to share materials and opinions and to keep on doing so enabling ideas, information and content to spread quickly and by word of mouth.

Relationships

Building up networks of relationships is encouraged and facilitated. Social networking sites (see below) typically allow its users to access and see the friends and connections made by others and highlight when users have such friends and connections in common.

Openness

Transparency and openness is encouraged on social media. Users expect even brand engagement to be authentic and sincere.

Ease of use

Social media services are easy to access and offer processes that are quick and simple to follow. Much digital content that is accessible on the internet is accompanied by symbols (e.g. the Twitter button, the Facebook “F”) allowing that content to be shared very easily via many platforms.

Immediacy

Most people carry a device that provides access to the internet and social media by simply pressing just a few buttons. Comments made or content shared is often uploaded almost immediately.

Reach

Many of the most popular social media sites are globally accessible and facilitate the sharing and forwarding of information and content rapidly.

Permanence

It can be challenging to delete without trace or completely erase contributions to social media services.

People

This seems to be the key defining characteristic of social media. The services depend entirely on people engaging and participating and cannot operate without people.

From a practical perspective, this defining characteristic is also key to a number of the legal risks that arise when engaging in social media.

People can easily make mistakes or be careless or thoughtless. If this occurs via a social media service some of the above characteristics may mean that mistake or careless act can have more serious consequences. A casual, if ill-advised, comment made in person in a social setting may be overlooked and quickly forgotten. Posted on a social media site there is a risk that such a comment could be viewed by many people and its effects could be unpredictable and last for a very long time. There are frequent media reports of high profile individuals who find that the press have discovered comments made on social media (often years previously) that now seem incompatible with their role or image. Neither is it unusual to hear of more everyday instances of individuals finding themselves embarrassed or in trouble, for example, for making a comment on social media that is subsequently seen by business associates, colleagues, clients or similar.

The case of DPP v Chambers2 attracted much publicity and attention in the traditional press as well as online. It involved a young man who had been trying to travel to visit a friend and found his journey couldn’t be completed due to adverse weather conditions at his local airport. He tweeted about this:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!”

He found that he was prosecuted under section 127 of the Communications Act for menacing communications (see chapter 6 for more details on this). He, of course, said it was just a joke. Mr. Chambers was initially found guilty but was successful in his appeal to the Crown Court.

Many online commentators offered considerable support to Mr. Chambers and regardless of personal views on the contents of the tweet, it does help to illustrate that a comment that might well go unremarked if made in person can have wide and unintended consequences when it is posted on social media.


Examples of social media sites and services

There are a range of popular types of social media services that are commonly used by individuals and businesses.

Networking sites e.g. Facebook, LinkedIn

These services allow users can connect with others and display their connections and share content with each other.

Facebook is the most commonly known example. Initially its user base was comprised mainly of individuals but this expanded to businesses with many having an account in order to amass “fans” who elect to receive any updates by “liking” the business. Some businesses will opt to use a Facebook profile, page and account instead of developing and operating a website.

LinkedIn is extensively used in the business world. It markets itself as a professional network that is extensively used by recruiters. Users can draft a profile including details of their work, skills and experience and other users can endorse those skills or recommend them. Users are encouraged to build up networks by adding “connections” to their profile and the service will highlight users that are connected to a user’s own connections with the objective of allowing users to build up and grow their networks. Users are also able to send messages via the service and share content on the service. Some of the challenges associated with employee’s use of LinkedIn are discussed in chapter 8.

Microblogging services e.g. Twitter

These are services allowing users to share brief messages with other users of the service.

Twitter is currently the most commonly used microblogging site by individuals, celebrities and businesses. Users select a Twitter name and can set up a brief profile setting out information about themselves and a photo. Users can opt to follow other users meaning that messages and content (tweets) shared by those that they follow will automatically appear in the user’s timeline (i.e. the page that appears when the user logs on to access the service). Each tweet gives the user a selection of options to share (retweet) the message or like it.

Hashtags (#) are used to group messages regarding the same topic together and the service will highlight topics that are currently the most popular (referred to as “trending”). Many brands will use their marketing slogans as a hashtag #. If a brand attracts adverse attention, users will frequently use the brand’s own hashtag in order to criticise or comment in a practice that has become known as “bashtagging”. Sometimes, considerable momentum can be generated relating to an issue with tweets being forwarded and spreading rapidly and widely. When this relates to a controversial issue, it is often referred to as Twitter storm (or twitterstorm). Of course, similar activities can be very positive (e.g. specific hashtags are sometimes used when incidents occur intended to quickly share news and provide comfort, Twitter has been also credited with helping a number of campaigns such as the mental health awareness campaign which involved affected users posting selfies with #it affects me).

Blogs and Vlogs e.g. Google’s Blogger, WordPress

Blogs refer to “web log” of content posted by author (blogger) and “vlog” refers to a blog in video format often shared via YouTube (see below)

Digital media sharing sites e.g. Instagram, YouTube, Flickr

These are services allowing users to upload and share creative content such as videos, photos and text.

Social Media aggregation sites e.g. Hootsuite

These are services that manage and aggregate social media content from multiple sources into one resource.

Crowdfunding e.g. Kickstarter

Crowdfunding describes sites that allow businesses to seek small amounts of investment from large numbers of investors and allowing users to make those investments.

Wikis e.g. Wikipedia

This refers to web based information pages that can be edited by users.

Virtual worlds e.g. SecondLife

These are simulated virtual environments where users can create, connect and chat with other users.


Business models and jargon

The digital and social media sector is filled with talented individuals looking to implement innovative ideas and disrupt traditional markets with technology-driven solutions to perceived problems in those markets or perhaps aiming to be the next global trend in the sector. In order to effectively identify legal risks and provide techniques to manage or reduce those risks it is essential to understand the proposed business model and how it is going to be implemented. Fortunately, those same talented individuals are often not at all shy in explaining in detail their proposals, business plans and the digital mechanisms that will be used to implement them.

As with any sector, the terminology used can sometimes be unfamiliar. Jargon and buzzwords are constantly changing and there is no embarrassment in seeking clarification. Sometimes project teams seem to develop a language of their own and a lawyer may need to explain that when the team members have all won a lottery jackpot and/or sold their interest in the business and retired the lawyer’s drafting will need to be clearly understood by others with no knowledge of the initial project (and in the worst-case scenario, in the event of a dispute, by a judge).

Terms and terminology are explained throughout this book. In case it assists a few terms that are used or that might be encountered in looking at some of the resources identified are briefly explained below.

GDPR

The General Data Protection Regulation, new data protection laws coming into force in May 2018, see chapters 3 and 4.

UGC

User Generated Content. Any contributions (comments, text, videos images) posted on a site or service by a user.

DPA

Data Protection Act 1998, see chapter 3.

ISP

Internet Service Provider. The term can be applied to any entity that offers any sort of service over the internet but frequently refers to the major players. Some legislation and regulation includes similar terms (e.g. information service provider).

URL

Uniform Resource Locator referring to the way in which a location on the internet can be identified and found. Incorporates the domain name, the protocol (usually http or https) and the path on the server.

The Cloud

The “Cloud” name is derived from illustrations that are often used to show how Cloud services work. The term refers to a service providers servers located in its own or others’ data centres in which users can store data and/or via which the user can access services.

There are further details in chapter 3 on the DPA compliance issues associated with these types of services and chapter 9 discusses some of the more general contractual considerations.

IOT

Internet of Things, which refers to embedding computer software into everyday items so that they can communicate via the internet (e.g. controlling your heating via your mobile phone).

AI

Artificial Intelligence, which refers to programming machines to learn and develop. The term is commonly used in connection with, for example, the development of driverless cars and robotics

Big Data

This refers to extremely large data sets that are used to analyse patterns, trends, behavourial characteristics etc.

NDA

Non-disclosure agreement or confidentiality agreement. Sometimes also referred to as a “CDA” or commercial disclosure agreement.

IP, IPR

Intellectual property or intellectual property rights. See chapter 5 for more on this.

App

This is short for application and usually refers to software that can be downloaded to a device (e.g. mobile phone or tablet) to enhance the functionality of the device.

Business use of digital and social media

Businesses from almost all sectors are engaging in some form of digital and social media with a variety of business aims and objectives.

Ideally, a business should develop a social media strategy with clear aims and objectives that can then be monitored and measured. Of course, some businesses simply proceed on the basis that “all of our competitors are involved” or similar. This in itself is not a bad reason for engaging since it will give the business some visibility of its competitor’s activity and participation allows it to monitor any comments (positive or negative) about its own business or brands.

Typical business objectives

Of course, there will be all sorts of motivators for a business’ digital and social media activities. Below are some examples of those that are commonly identified.

Branding and marketing

Many organisations will be looking to achieve an increased level of brand awareness and perhaps present the brand in a more positive light.

Advertising

There are various types of digital advertising which a business may want to conduct (see chapter 6 for more details on this) or a business may be looking to supplement and enhance a print or other media campaign with online digital and social media activities.

Sales

A business may set up a site to sell directly online to its customer base or may be seeking to drive increased sales by engaging with potential customers via its digital and social media activities.

Research and development

Expertise and experience can be shared amongst users with common interests or goals via social media.

Customer service

Many individuals would prefer to post or tweet a comment than try to battle their way through a large organisation’s telephone voice management system. Delivering customer service effectively via social media channels can also of course lead to other positive consequences.

Reputation management

A business will want to be aware of comments (positive and negative) that are made via social media and there may be circumstances when a business would like to take some action in relation to this (although see further below on this).

Knowledge sharing

Ideas and information can be rapidly circulated.

Community and customer building

Some social marketing activities are aimed at enhancing the users loyalty to a brand or product (sometimes referred to as “sticky-ness” by brands). If a brand is known for sharing fun content or similar then this might motivate a user to follow, like or keep visiting the brand’s service or site.

Transparency

Social media users value openness and transparency. Large organisations may find that social media platforms are helpful in allowing them to give users an insight into what’s going on internally and how the organisation operates.

Internal communications

Other businesses may use social media largely for internal communications e.g. organising events, sharing knowledge or internal announcements.


Examples

The level and type of a business’ digital and social media activities will vary from business to business and even within a business. Some examples are outlined.

Corporate website

Some businesses will elect to simply set up a website that allows users to view details about the business and its product and services. They may incorporate a facility that allows users to contact them or sign up to receive newsletters or updates.

Selling goods or services online

A sale of goods or services can be concluded on line via a business’s own site as well as via other platforms (e.g. Amazon).

Employees’ activities

It may be that a business is entirely happy for employees to freely participate in social media, openly identifying themselves as working for the business.

For example, the technology company IBM has been credited as being an early adopter of this approach, encouraging and working with employee bloggers to enhance the corporate image and sharing of knowledge. It now maintains a directory of a wide range of blogs written by IBM staff.3

Corporate engagement via social media platforms e.g. Twitter, Facebook, LinkedIn

A business may choose to create its own profiles and accounts on popular social media and designate certain staff with responsibility for operating and maintaining these.

Operating services for two-way communications (i.e. incorporating user generated content) e.g. bulletin boards, communities

Another option is for a business to operate its own service that allows users to actively participate. This may be a relatively simple bulletin board allowing comments on content and news that is shared via a website or a more sophisticated community that encourages participation by many business stakeholders e.g. staff, customers, suppliers, neighbours etc. and sharing a wide range of content.

App development

Businesses are frequently developing their own apps for use by staff and their customers with a view to achieving efficiencies in the way in which the business operates and ensuring that business services and offerings can be accessed and used via multiple digital devices.

Social media campaigns and projects e.g. advertising, promotions, competitions

Other businesses may launch ad hoc campaigns or projects that are based on social media or use social media to enhance other promotional or project related activity (e.g. an organisation hosting an event may elect to live stream video footage of the event as well as using social media to try to attract viewers).

Evaluating legal risks

As with all business activities, digital and social media activities will lead to some legal risks. Evaluating that legal risk and implementing appropriate steps to reduce and manage the risks is a process much like the evaluation of legal risks in other business areas. The first step is to identify precisely what the business is intending to do and consider practical risks as well as applicable laws and regulations relating to the business plans and any consequences of implementing those plans.

For example, a basic corporate website providing information about the company is likely to involve fewer risks than setting up an online community inviting users to participate, communicate and share content. It may also be that the level of activity will attract additional risks, for example, the more a business engages then the greater likelihood of adverse reaction or comment as well as positive.

It is often the case that communications, PR and marketing professional may have a greater inclination to conclude that the benefits of participation outweigh the risks of doing so. The advantages of involving colleagues with a range of skill sets is a recommendation that is mentioned frequently in the following chapters.

This can also be an important factor in determining a response to any adverse social media attention. There may be formal and legal mechanisms that can be pursued in response to an incident but such a response may be heavy handed and escalate issues rather than resolving them. A Twitter storm or similar can be over in a very short space of time and largely forgotten about within an equally short period of time.

Also, whilst such incidents may be taking place via publically and globally accessible forums and services, in reality the audience and level of attention is likely to be limited. Any action that is perceived to be aggressive may simply result in even more attention being given to an issue that would otherwise have faded from prominence much more quickly.

An early example of this involves a Chicago based property management company, called Horizon Group4. Amanda Bonnen rented an apartment managed by Horizon. She was experiencing some problems associated with the maintenance of her flat and felt she has not received an adequate response from Horizon. Ms. Bonnen tweeted about the issues. Ms. Bonnen had less than 20 followers of her Twitter account.

Horizon respond by filing a $50,000 law suit, claiming she had “greatly injured its reputation as a landlord in Chicago”. When a local newspaper asked a Horizon executive for comments, the reply was:

We’re a sue first, ask questions later kind of organisation”.

The above comment was later claimed to be tongue in cheek. However, within a very short time the story went viral. It was reported that over 250 sources were covering the story including FOX News, Sydney Morning Herald, Wall Street Journal and numerous others as well as online blogs.

Of course, all of the above could have been avoided if someone from Horizon had perhaps telephoned to resolve the issue or sent someone to the property to rectify the problems. Instead, their reaction ensured that the complaints against them were publicised widely and globally.

The following chapters are intended to provide guidance with identifying legal and compliance issues and risks and resolving, reducing and managing such risks.


Conclusion

Active participation in digital and social media may help a business to achieve a wide range of objectives. As with all business activities, there will be some legal risks and compliance issues as detailed in following chapters but a well-advised business can take steps to ensure compliance and reduce and manage legal risks.

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1In June 2017 the CEO of Facebook claimed over 2 billion active users of the service each month.

2[2012] EWHC 2157 (QB)

3https://www.ibm.com/blogs/

4Horizon Group Management, LLC v Amanda Bonnen, Cook County No. 2009 L 8675