Social media and reputation management: a new legal and communication landscape

June 2014

Jonathan HemusInsignia Communications

Magnus BoydHill Dickinson

Introductions and welcome

Today’s webinar

• A new landscape• Recent legal developments• Managing third party comment• Managing “official” online content• Managing online content posted by employees• Legal and communication teamwork• Questions

A new landscape

Image from Freshfields Bruckhaus Deringer LLP’s report “Containing a crisis: Dealing with corporate disasters in the digital age”, November 2013

A new landscape:Speed of dissemination - legal implications

“we recognise that as a consequence of modern technology and communication systems any such stories will have the capacity to “go viral” more widely and more quickly than ever before. Indeed it is obvious that today, with the ready availability of the world wide web and of social networking sites, the scale of this problem has been immeasurably enhanced, especially for libel claimants.... In our judgment... this percolation phenomenon is a legitimate factor to be taken into account in the assessment of damages”

Cairns versus Modi

A new landscape:Speed of dissemination - communication

implications

• Scenario planning – re-visit your reputational risk assessment in light of increased risk & likelihood of crisis

• Capacity development – speed of social media necessitates the creation of capability and resources beforehand

• Never compromise credibility - speed is desirable, accuracy is essential

A new landscape:The ability to publish anonymously

"I have no hesitation in finding that the balance weighs heavily in favour of granting the relief sought. To find otherwise would be to give the clearest indication to those who wish to defame that they can do so with impunity behind the screen of anonymity made possible by the use of websites."

Judge Owen, Totalise plc versus Motley Fool Ltd

Recent legal developments

Recent legal developments

• Limitation period for online publications– One year time limit

• UK Defamation Act 2013– Procedure for taking down defamatory material

Recent legal developments

• The right to be forgotten (EU ruling)– Right to removal of “irrelevant, outdated or otherwise

inappropriate content”– Only applies to search engines (not original publisher)– Only applies in EU

• Publicity orders– Successful libel claimant can request that defending

company published their wrongdoing online

Recent legal developments:Publicity orders – communication implications

• Pro-active reputation management programme – build reputational credit and strong relationships

• Communication planning for the legal process – shape the narrative rather than be a victim of it

Applying copyright laws to social media

• To re-publish copyrighted material without a license or permission is a breach of copyright

• Copyright attaches to any original work e.g. a press release, slogan or catchphrase

• Defence of 'fair use' applies when citing a limited amount of the material for criticism or reporting current events

• Material may still be copyrighted even if there is no copyright symbol• Just because the work has been posted on another website does not

mean your re-publication would not be in breach • No defence if you are not intending to use the work for commercial gain• Giving the author a credit is no defence

Nestle versus Greenpeace

Nestle versus Greenpeace: learnings

• Aggressive moderation can make a bad situation worse – train and rehearse

• Take legal and communication advice – just because you can take legal action doesn’t mean you should

• Scenario plan from the activist’s perspective

Managing third party comment

Managing third party comment:Legal options

• Identify source of attack• Request immediate removal of content• Sue in libel• Act quickly to remove defence of “innocent

dissemination”

Managing third party comment

• Use social monitoring tools to track the source of comments

• Actively moderate content• Create a terms-of-use policy • Remove inappropriate material • Decide whether or not to explain removal

Managing third party comment:Communication implications

• Reputational risk audit: identify and prioritise likely risks and issues

• Stakeholder mapping: identify and analyse friends & foes who can influence reputation

• Scenario planning: consider how key risks might play out • Behaviour change: change the way you operate to reduce the

likelihood of criticism• Perception change: reputation management programmes seek to

alter the way stakeholders view your organisation• Contingency planning: issues/crisis management procedures,

people, training and resources

Managing “official” online content

Managing “official” online content

• Prevention is better than cure: do not publish anything that you cannot verify as true

• Every re-publication gives rise to liability: no safety in publishing something that someone else has published.

• Don’t try to circumvent the law with thinly disguised references

• Be cautious when commenting: Any statement must clearly be ‘comment’ with a factual basis, objectively fair and in the public interest

Managing “official” online content: Communication implications

• Don’t ignore the opportunity that social media provides with an overly risk averse approach

Managing online comment posted by employees

Social media policy:Legal guidelines

• Course of employment• Guidelines for posting• Unacceptable content:

– Anything obscene, defamatory, private – Anything that breached intellectual property rights (eg

trademarks and copyright) – A catch-all like ‘anything that would bring the organisation into

disrepute’ – Anything that you know to be false – Anything that would disrespect or breach the rights of fellow

employees

Social media policy:Making it real

• Create, brief, embed

Legal and communication teamwork

Legal and communication teamwork

• Different expertise, same objective• Best advice – CEO to decide• Trust and respect based on pre-existing relationship• Joint involvement in planning/training:– Reputational risk assessments– Scenario planning– Crisis simulation exercises

• Pre-agree approval process

Protecting your reputation from a social media crisis

Contact details

Jonathan Hemus, Insignia CommunicationsWebsite: www.insigniacomms.com Email: jonathanhemus@insigniacomms.comTwitter: @jhemusinsigniaPhone: +44 (0)786 832 9102

Download our report here:http://insigniacomms.com/resource/

Social media and reputation management: a new legal and communication landscape

June 2014