My Views On The Marketplace And How CCL Plays In The Social Media … · 2012-09-28 · Social...

Presented by the Canadian Bar Association’s (CBA) National Competition Law Section and

the Professional Development Committee of the CBA

Présentée par la Section nationale du droit de la concurrence de l’Association du Barreau canadien (ABC)

et le Comité du développement professionnel de l’ABC

MATERIALS / MATÉRIAUX

2012 Competition Law Fall Conference

Conférence annuelle d'automne 2012 en droit de la concurrence

My Views On The Marketplace

And How CCL Plays In The Social Media Space

Fiona K. Orr Vice President, Senior Managing Counsel,

Coca-Cola Ltd.

September 20 - 21, 2012 | 20 et 21 septembre, 2012 Hilton Lac-Leamy | Gatineau, Québec

My Views On The Marketplace

And How CCL Plays In The

Social Media Space 2012 Annual Competition Law Conference

September 20-21, 2012

Fiona K. Orr Vice President, Senior Managing Counsel,

Coca-Cola Ltd.

First things first:

The views and opinions expressed in these materials are those of the presenter and may not necessarily represent the views or opinions of

Coca-Cola Ltd.

What will we talk about today?

• Introduction and overview

• Quick overview of the evolution of technology and social media and how it’s impacted the practice of law

• Discussion of how marketers can use social media and the complex web of legal issues they step into when they do so

• The evolution of Coca-Cola’s approach to social media

Let’s talk about technology and social media.

• I started practicing in ancient times (1989).

Our desktop computers (there were no laptops) were DOS based.

We had a primitive internal email system.

The internet was still kind of science fiction.

Legal research was mostly done in the library.

When you wanted to share an electronic document with opposing counsel, you saved it onto a 3.5” floppy disk and couriered it.

When your clients wanted to reach you, they called you or sent you a letter. If it was urgent, they might fax you something (if you had a fax machine).

Technology and Social Media (continued)

• Fast forward to today:

I will now check to see how many email messages I’ve gotten so far today.

The ability to access and share information is the most significant development in my lifetime (and perhaps in history).

Expectations have been re-set universally. Business moves at lightning speed, and support for the business has to keep up.

Digital and social media often don’t fit neatly into the confines of traditional laws.

Social Media

• Social Media is simply about relationships and how we converse today

– Not a fad but a fundamental shift in the way we communicate

• Quick facts:

– Overtaken porn as the no.1 activity on the web

– 50% of mobile internet traffic is on Facebook

– The No. 2 search engine is Youtube – Google owns them both

– If Wikipedia was made into a book it would be 2.25 million pages long

– 1 in 5 couples meet on Facebook – 1 in 5 divorcees blame Facebook

– What happens in Vegas, stays… on Youtube, Flickr, Twitter and Facebook

– Over 32m people have watched the VolksWagen Darth Vader ad on Youtube

– Justin Bieber of Stratford Ontario (Population of 80k) has 28M followers on Twitter

• If tweens could vote in an election, who do you think would be prime minister?

How can marketers use social media?

• A way to join conversations, share information, and message huge numbers of consumers quickly, cheaply, and easily.

• Can use countless platforms:

What’s the big deal then? Why can’t marketers just use social media like everyone else?

• Social media was not created for marketers

• Conversations and sharing were intended for individuals protected by freedom of speech principles

• For marketers to participate in consumers conversations, they need to start acting like people and not brands or shifty salesmen

Them Us

The current legal landscape:

• Until further notice,

traditional laws apply

• The law doesn’t favor marketers’

sourcing/use of content without

permission

• Be wary of developing a false sense of security

So, what should marketers be nervous about?

• Transparency and Truthfulness – Penalties under the misleading advertising provisions of the Competition Act

• Potential civil track consequences:

– $10 million AMP ($15 million for repeat offences)

– Restitution awards up to the amount paid

• Potential criminal track consequences:

– Unlimited fine

– Imprisonment for up to 14 years

– Possible parallel civil/class action claims


• Rights of Publicity/Privacy

Probably the trickiest area with regard to legal analysis

• What law or laws apply?

• Is there consent? Was it properly obtained?

• Is there a “commercial purpose”?

• What elements of persona are covered?

• Has privacy been invaded?

• Could the communication be “spam”?


• Copyright infringement

The ease with which materials can be copied and pasted in social media can lead to a false sense of security

“Fair” use and “public domain” are often very misunderstood

Marketers often feel they have some sort of “journalistic exemption”


• Use of Music

One of the most misunderstood areas of the law

Multiple rightsholders:

• Artist

• Label

• Publisher

Different rights may need to be cleared for different uses


• Trademarks

Use your own marks properly

Clear new marks before using them

Be respectful of others’ marks, including securing permission where appropriate

My rule is always get permission!


• Linking

Do you need permission?

Can the site owner give you all the permissions you need?

Does the linked site include any inappropriate material?

Will the linked site collect PII from visitors?


• Substantiation

Any messaging that you send out or that you otherwise might be held responsible for and which includes what appears to be an objective, verifiable statement about your company or your product must be truthful and not misleading, and you must possess substantiation to support such statement at the time the statement is made. This requirement applies in social media just as in any other context.


• Contests

Subject to the same rules and regulations as in other media/contexts

Need lawful methodology

Must protect consumer data

Guard against fraudulent activity

Be aware of and enforce eligibility restrictions

Secure appropriate permissions if third-party prizing is offered

Be aware of and comply with platform’s requirements


• Quebec-specific Issues

Promotional contests

Notice to Régie des alcools, des courses et des jeux

Duty (tax) paid

Rules conform

Rules and ads in French

Social media

Contests must be simultaneously in English and French


• User-Generated Content (a/k/a the hobgoblin of marketers everywhere)

Laundry list of potential issues:

Copyright infringement

Violations of rights of publicity/privacy

False association or false endorsement

False advertising

Trademark infringement

Libel/defamation

Patent infringement

Claims by ACTRA

Violation of data privacy requirements or PIPEDA

Violation of rules regarding marketing to children

Violation of Competition Contest or other of outside of Canada Guides

Violation of lottery laws

Violation of corporate disclosure rules

Public relations and brand strategy issues

What sort of protections might be available?

• The Due Diligence Defence

– Advertisers should be prepared to demonstrate that they undertook reasonable due diligence (civil track)

– Advertisers should be prepared to demonstrate that they did not act recklessly or knowingly (criminal track)]


• Terms of Use- update frequently

Be sure they match up to what you’re actually doing on the site

Make them as clear as possible

• Include appropriate disclosures and disclaimers on the website

Make sure users know what to expect from the site

Be clear and transparent


• Vetting/Monitoring/Filtering of submissions

Much of the risk, particularly with UGC, can be mitigated if you vet submissions

Can use human and/or tech filters

At the very least, include a system for community monitoring (flagging)

Include a downloadable release?


• Follow Industry Guidelines

Office of the Privacy Commissioner of Canada has published Guidelines that represent best practices in the social media space

While these documents do not constitute law, they reflect the principles on which industry self-regulation is based, and adherence to them demonstrates adoption of best practices

What questions should you as a marketer ask before leveraging a social media platform?

• How do the platform’s Terms of Use affect a marketer’s use/re-purposing of content from the platform?

• How can a marketer use the platform’s trademarks in its marketing materials to drive traffic to the marketer’s location on the platform?

• What are the platform’s policies regarding contests and sweepstakes? Does it have different standards for whether a contest/sweepstakes is administered on the platform vs. merely advertised on the platform?


• What are the platform’s policies regarding “cybersquatting” (using that term loosely), such as when users include trademarks or others’ identities in their profile names or otherwise on the platform?

• What is the platform’s position regarding responsibility for infringing or defamatory material published on the platform? What if it’s published on a fan page or community belonging to a brand? Should/can the brand have its own disclaimers and take-down procedures? What other strategies or techniques can a brand use to engage in social media on the platform while insulating itself from liability?


• In what sorts of circumstances must brands seek permissions to engage in activities on the platform? In what sorts of circumstances do brands need to actually enter into agreements with the platform? What are the criteria the platform uses for granting or denying permissions, and what are the standard terms of required agreements?

• How does the platform manage the collection of PII, and how can a marketer collect PII on the platform?

• How is the platform connected to mobile social marketing, and what mobile tools and resources does the platform have that a marketer can leverage?

In the future:

• Courts, regulators,

legislators, and individuals may

collectively decide that marketers have

more “license” to re-use materials in

social media than elsewhere.

• We’re not there yet.

• In fact, the opposite seems true

What is likely to stay the same:

Need for:

•Truthfulness

•Transparency

•Respect for privacy

The Office of the Privacy Commissioner has already taken steps to modernize these concepts (Facebook investigation, Guidelines)

What might change?

When permission is needed and how permission is granted or implied.

Why might this change?

•Fundamental differences between social media and the brick-and-mortar world

•Social media platforms, including terms of use, etc., arguably change the dynamic

We’re not there yet.

Where does that leave us right now?

• Lots of “gray area”

Clearly Clearly

Lawful Unlawful

How can we deal with the gray area?

• Develop tools that can help identify risks so that we can make informed decisions

• Base these tools not only on strict legal analysis, but also on emerging trends, customs, and accepted practices.

The evolution of Coca-Cola Ltd. approach to social media

How has the Company evolved?

• The Company has traditionally been relatively conservative. However, as digital and social media have grown, so has the Company’s presence there.

• Today, we have the #1 Facebook Fan Page, with over 50 million fans.

• How did we move from one place to the other?

Fish where the fish are.

• We recognized that as a part of culture and everyday life, we had to be part of consumers’ world online.

• Also identified the need to be respectful, adopting a “fans first” mentality.

• How could we implement this across such a large organization?

• Content excellence –

purpose to create

ideas so contagious

that they cannot be

contained – known as

‘Liquid’

• These stories are

relevant to our

business objectives,

brands and consumer

interests – known as

‘Linked’

Liquid & linked – A new creative process

4 Principles driving content excellence and Liquid & Linked

Social at the heart

– Why should I

care? Why should I

share

70% tried and

tested; 20%

pushing the

envelope but

medium risk and

10% next

generation high risk

Leverage Owned (our

product, trucks,

employees), Earned (PR

& Social Media) Shared

(Assets we partner with)

and Paid (media)

No dead ends –

every element

leads to

something else

and keeps the

conversation alive

The Company’s Social Media Initiatives • Online Social Media Principles published in December 2009

The Company’s Social Media Initiatives

• Social Media Certification Training Program – early 2010

• KO Social Publish – May 2010

• Social Media Playbook – June 2010

• Online Social Media Publishing Guidelines & Compliance Handbook – September 2010

• Social Media Crisis and Communications Plan – Sept. 2011

• Social Media 101 and 102 rolled out this year, with additional specialized training to follow

• Other than employees speaking in Social Media- all other SMEs and Agencies have to be trained to play in this space.

Legal’s Role in Social Media

• Ensuring adherence to legislation and guidelines

• Developing compliance programs and training to support due diligence defences

• Following best practices when navigating ‘grey area’ issues

• Frankly – In my advice, I ask a lot of questions based upon the belief that each person using the medium may not understand it , has a lot of time to be on line and to complain if unhappy- because they will.

Move to the Beat Tour

http://www.youtube.com/watch?v=lYcsbNtlbvg

LINK

http://www.youtube.com/watch?v=rK62rsD

kmko

http://www.youtube.com/watch?v=rK62rsDkmko

http://www.youtube.com/watch?v=rK62rsDkmko

Questions?

Appendix - 70/20/10

• 70% of our output is tried and

tested and low risk. This

takes up 50% of our time

• 20% is medium risk – things

that we are pretty confident

will be received well. Takes

up 25% of our time

• 10% is high risk – things that

are completely new but could

be very successful for the

brand. This also takes up

25% of time

My Views On The Marketplace And How CCL Plays In The Social Media … · 2012-09-28 · Social...

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