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Wednesday, March 6, 2013

Social media marketing – are your risks covered?

By Lawyer Tracy Lu and Trade Marks Attorney Daniel Wilson

Social media marketing and other forms of e-marketing have proven to be greatly successful models in helping businesses to reach a large body of potential customers quickly. But are your business practices up to scratch in terms of covering the risks of social media marketing?  In this first instalment, we open up discussion with some pitfalls to avoid.

Social media policies

The first issue to consider is whether your social media marketing campaign will breach the policies of a platform you are using.

For example, Facebook's Statement of Rights and Responsibilities requires that users not post unauthorised commercial communications (such as spam) on Facebook. Some examples which Facebook gives as indications of spam (and which therefore its systems will pick up) include where a user sends the same message to 50 people not on their 'friend' list in a span of an hour.

Similarly, the Twitter Rules state that users may not use the Twitter service for the purpose of spamming.

Both of these platforms also have mechanisms which allow users to report spam.

Spam Act

Under the Spam Act 2003 (Cth), unsolicited commercial electronic messages must not be sent unless certain requirements are met, including that the receiver has given express or implied consent and that the message contains certain information about the sender and a functioning unsubscribe facility. 

An example of how this may affect your social media marketing campaign is the recent response by the Australian Communications and Media Authority (ACMA) in relation to the McDonald's 'friend get friend' campaign. The campaign involved a 'send to friends' facility on the company's Happy Meal website. Users were sending emails through that facility to their friends who had not given consent and which did not include an unsubscribe facility. ACMA issued a formal warning under the Spam Act (which it is entitled to do under section 41 if a person contravenes a civil penalty provision). The 'send to friend' facility has since been removed.


It is also important to consider the requirements of the Privacy Act 1988 (Cth) with respect to the collection, use and disclosure of personal information. Personal information is information about an identified, or reasonably identifiable, individual.

A collecting organisation must, at the time of collection of personal information, ensure that the person is aware of the identity of the collecting organisation, the purpose for which the personal information is collected and the fact that the person about whom the personal information is collected is able to access that information.

Where third party agents collect personal information on your behalf, or in relation to 'friend get friend' campaigns where your customer provides you with personal information of third parties, you should bear in mind that:

(a) where it is reasonable and practicable to do so, you must collect personal information about an individual directly from that individual; and

(b) you must take reasonable steps to make sure the individual is or has been made aware that it is in fact you and not the third party, who is ultimately collecting that individual's personal information.

You should also have a privacy policy which clearly sets out how your business manages personal information, such as what uses and disclosures may be made of that personal information.

Trade marks in social media

When promoting your business through social media marketing, you must be mindful when using a trade mark (either your own, or someone else's).  Here are some tips to using trade marks successfully in social media:
  • capitalise your BRAND when Tweeting;
  • use the ™ symbol when posting your Brand™ updates on Facebook;
  • use the ® symbol to identify that Brand® is a registered trade mark. Of course, you can only lawfully use ® if it is actually a registered trade mark; and
  • never use your trade mark as a generic term. For example, in a promotion, don't 'give a brand to the next person to re-Tweet'. Instead, give 'a BRAND product to the next person to re-Tweet'.
If using someone else's trade mark, make sure that you aren't using it in a manner that may be deceptive, misleading, or confusing to the market place. Don't risk making any false associations with someone else's Brand®, BRAND, or Brand™ and refrain from making any potentially damaging claims about someone else's BRAND.

Not only should you be careful about your own Facebook posts, but also those of your fans, in case they fall foul of consumer laws relating to misleading and deceptive conduct.  

With the advent of social media marketing, businesses have been exposed to new and exciting opportunities and also new risks, which should be properly considered and addressed by clear and adequate internal measures.

1 comment:

  1. Social media is an open space and many people don't realise that they need to be careful before posting status, sharing updates or uploading a photo. Media agencies like ibs, Communicate2 and many others help brands to make the best use of social media without voilating any terms of policy. And, people in general, needs to do the same.