Social Media and Advertising Issues. Jonathan Flintoft, Baker & McKenzie Rebecca Bedford, Minter Ellison

Transcription

1 Social Media and Advertising Issues Jonathan Flintoft, Baker & McKenzie Rebecca Bedford, Minter Ellison 1

2 Introduction 1. Contractual issues Addressing social media advertising in the franchise agreement Impact of permitting online/ social media advertising on other terms of franchise agreement 2. Regulatory issues Issues with testimonials Native advertising and use of bloggers 2

3 CONTRACTUAL ISSUES 3

4 What does the franchise agreement say? Does the agreement permit or prohibit internet advertising by the franchisee? Does the agreement expressly deal with use by the franchisee of social media? Example: Franchisee shall use advertising techniques such as event sponsorships, joint promotions and internet/ social media channels, as well as printed media appears to permit use of social media by franchisee but rights are potentially broad and unfettered 4

5 What does the franchise agreement say? The agreement should make it clear what can/cannot be done on social media be broad enough to cover advances in technology address ownership of content/ use of IP on social media platforms 5

6 Approaches to social media advertising in franchise agreement 1. Use of social media controlled by franchisor/ no rights for franchisee franchisee prohibited from establishing website or social media account relating to franchised business or products/ services sole right of franchisor to set up and control website or social media presence franchisees may have limited participation eg. ability to make posts, links to franchisee websites likely to be applicable where franchisor in-country and/or has franchisor operated franchises 6

7 Approaches to social media advertising in franchise agreement 2. Use of social media permitted by franchisee may be appropriate where franchisor has no incountry presence or operations local social media pages may be an effective marketing tool and assist with engaging local consumers eg. through competitions franchisor should consider carefully what rights franchisee should have to operate in social media and ensure there are appropriate controls in the agreement 7

8 Considerations for franchise agreement Controls over social media platforms that may be used franchisor consent in all cases? Facebook only? what about Twitter, Instagram, Pinterest, etc? blanket permission may be problematic in view of likely future changes Responsibility for costs of setting up and maintaining social media pages Approval of user names/ content by franchisor eg. user name should indicate particular territory pre-vetting of content by franchisor before uploading 8

9 Considerations for franchise agreement (cont.) Responsibility for creation/ management of content clear statement to users that page is run by franchisee compliance with laws and rules of particular platform complaint handling/ take down procedures Provision of content by franchisor can franchisee only use content provided by franchisor? consider whether appropriate in particular market If franchisee is permitted to create content, who owns it? owned by franchisor to extent refers to franchisor s trade marks, products, etc? Obligation to comply with franchisor s directions 9

10 Considerations for franchise agreement (cont.) Specific indemnity by franchisee in favour of franchisor? Procedures on expiry/ termination transfer of social media accounts to franchisor (to the extent possible) termination of accounts transfer of content rules of the particular social media platforms will be relevant Note: social media policies should be regularly reviewed and updated due to the frequent changes to the rules of use of the various platforms and likely changes to the types of platforms available 10

11 Impact on other terms of agreement Territories Restraints of trade 11

12 Territories Tension between the traditional idea of the franchise territory and the borderless nature of the internet Drafting of territory clauses going forward will require fresh thinking But risks remain where franchisors are operating under outdated agreements 12

13 Territories Virtual encroachment The sorts of claims franchisors may face have not significantly changed from those made in traditional encroachment cases But the risks of franchisor liability have increased because of the growth in online commerce 13

14 Territories Legal risks to franchisors flowing from online activity: breach of the franchise agreement misleading or deceptive conduct and related claims under the CCA unconscionable conduct claims claims based on good faith 14

15 Territories Case study Video Ezy Poorly drafted territory clause [the franchisor will not] carry on the trade or business...within the territory... Franchisor argued sales into the territory were not sales within the territory Court rejected the argument Breach of: - territory clause - implied term of good faith - unconscionability provisions of CCA 15

16 Territories How to mitigate the risks? Terms clearly permitting sales into the territory (cf. the poor drafting of the Video Ezy clause) Marketing as opposed to sales and distribution territories Careful analysis of existing franchise agreement before franchisor undertakes online operations 16

17 Territories Issue of franchisees encroaching on each other s territory Different models to give franchisors control of online operations: absolute control control of public face of online operations 17

18 Territories Important to consider competition issues associated with online sales Note amendments to Franchising Code regarding disclosure of online operations 18

19 Restraints Key problem is that traditionally drafted franchise clauses may be easily circumvented by former franchisees using online operations Need to draft in order to capture online activity but this potentially increases the risk of the clause being found to be unenforceable 19

20 REGULATORY ISSUES 20

21 Online testimonials Risks in the franchising context Brand damage Astro turfing Commercial risks: inconsistent messaging degradation of the brand and other intellectual property Vetting may be reduced 21

22 Online testimonials Legal risks: misleading and deceptive conduct under the CCA specific prohibitions against false or misleading representations Even unsolicited testimonials may give rise to franchisor liability where: the franchisor is aware of the testimonial; the franchisor has the ability to remove it; and the franchisor fails to take steps to remove it 22

23 Online testimonials Online review platforms Urbanspoon and TripAdvisor are popular examples Risks associated with franchisors encouraging the posting of online testimonials on third-party sites Electrodry proceedings currently before the Federal Court provides a good example 23

24 Online testimonials Electrodry: Carpet cleaning franchisor ACCC brought proceedings in July for misleading or deceptive conduct/false representations Proceedings still before the Court Allegations that Electrodry instructed a contractor and franchisees to post fake testimonials on various online review platforms: Amazing Job! Fantastic Result! These guys are the best cleaners! 24

25 Online testimonials Allegedly issued a manual to franchisees on how to post fake reviews Provided template reviews Asked that mobile phones be used so that IP addresses would be different ACCC alleges: Electrodry made false or misleading representations through the contractor Electrodry induced or attempted to induce its franchisees to make false or misleading representations 25

26 Online testimonials Potential risk management strategies for franchisors: Adjusting settings of social media accounts Proactive monitoring of social media Clear digital standards policy Contractual take-down powers Breach notices for a breach of digital standards policies Tightening of definition of advertising and promotion to cover social media Contractual obligations on franchisees to monitor social media Franchisee training as to risks of social media/online testimonials 26

27 Online testimonials ACCC guidelines: What you need to know about online reviews a guide for businesses and review platforms Key points in franchising context: Avoid encouraging friends and family to write reviews without disclosing the connection Avoid soliciting others to write reviews when these people have not actually used the relevant product or service Avoid offering incentives for positive reviews Always disclose commercial relationships Avoid selective editing of reviews Useful tool for franchisee training 27

28 Native advertising/ blogger issues What is native advertising? Examples sponsored tweets bloggers as brand ambassadors incentivising consumers to make posts (eg. in context of competitions) Increasingly valuable marketing tool 28

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30 Kangaroo Island: Cash for Tweets None of tweets revealed that celebrities were paid to post the tweet or that the tweet was connected to a South Australian Tourism Commission campaign Bad publicity for SATC featured on ABC s MediaWatch programme triggered large number of negative tweets and comments from consumers ACCC statement: celebrities do not necessarily need to disclose that they are being paid but it was important that in all instances celebrities tweets or Facebook posts were truthful out of step with approach in other countries? 30

31 UK approach Consumer Protection from Unfair Trading Regulations specific prohibitions using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing marketing communications must be obviously identifiable as such marketing communications must make clear their commercial intent, if that is not obvious from the context marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature" 31

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33 UK approach (cont.) UK Advertising Standards Authority ruling not a breach of the Code initial out of character tweets did amount to a marketing message but, considering that consumers would understand each series of tweets was a marketing communication when viewed in its entirety, acceptable that preceding tweets were not individually disclosed as adverts all tweets made within 1 hour final tweet featured #spon 33

34 Other jurisdictions New Zealand Advertising Standards Authority Guidance Note on Social Media paid for Twitter endorsements must include #ad US FTC.com Disclosures Guide examples 34

35 Australian approach ACCC Online Reviews Guidelines (December 2013) Guiding principles 1. be transparent about commercial relationships 2. don t post or publish misleading reviews 3. don t omit or edit negative reviews (this can be as misleading as posting fake reviews) Directed at online consumer review platforms but also relevant to native advertising No prescriptive requirements as in US and NZ Application of s.18 of the ACL will ACCC become more active as use of native advertising increases? 35

36 Contractual considerations Could obligations in Talent Agreement restrict expression of genuine views? for example obligations not to make negative comments/ damage brand reputation requirements to pre-vet or edit content use of content provided/ required by brand owner Consider including obligations for talent to base reviews on actual experience/ genuinely held views Care in exercising rights to edit/ remove reviews and posts 36

37 Considerations if engaging in native advertising Carefully consider whether paid endorsers should be required to disclose their relationship with the brand and, if so, the appropriate form of disclosure (Ad: / #ad seems safest) needs to be weighed against possible loss of integrity and spontaneity in social media context Level of risk involved and appropriate form of disclosure may vary depending on the endorser s celebrity status and the context of the marketing communications the more famous the celebrity, the more likely consumers would understand they are being paid to endorse brand consumers are more likely to recognise paid endorsements in traditional media (eg. TV commercials) than in social media 37

38 Considerations if engaging in native advertising (cont.) Consider requiring consumers participating in promotions to clearly reference the brand/ competition in promotion social posts Make it clear to ambassadors that they should only make honest representations based on their own experiences and views but risk of negative comments Think twice before imposing obligations on brand ambassadors to only post positive comments about the brand, or before vetting negative posts 38

39 Questions? 39