Socially Aware's

Volume 7, Issue 1, January 2016 Socially Aware 2011 Best Law Firm Newsletter the social media law update

In this issue Three Steps to Help Ensure the Enforceability of Your Website’s Terms of Use Page 2

FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers Page 4

The Top Social Media Platforms’ Efforts to Control Cyber-Harassment Page 5

California Passes Four Bills Protecting Privacy Rights Page 7

How UK Brands That Use Vlogger Endorsements & Social Media for Marketing Can Stay on the Right Side of the Law Page 8

Editors John F. Delaney Aaron P. Rubin Happy 2016! Welcome to the newest issue of Socially Aware, our Contributors Burton Award-winning guide to the law and business of social media. Adam J. Fleisher Aaron P. Rubin In this edition, we offer practical tips to help ensure the enforceability Libby J. Greismann Scott M. Sawyer Susan McLean Miriam H. Wugmeister of website terms of use; we discuss the FTC’s ongoing efforts to Julie O’Neill Daniel A. Zlatnik enforce disclosure obligations in social media advertising; we examine Dom Rothbarth efforts by top social media platforms to control cyber-harassment and explicit material; we take a look at four recently passed laws protecting

FOLLOW US Californians' privacy rights; and we explore legal issues that UK brands Morrison & Foerster’s need to consider when engaging in vlogger endorsements and social Socially Aware Blog media marketing.

@MoFoSocMedia All this—plus an infographic listing 2015's most popular social media trends. For example, in Nguyen v. Barnes & Instead, such website operators THREE STEPS TO Noble, Inc., Barnes & Noble did include present a link to the terms alongside HELP ENSURE THE a relatively clear link to its website a checkbox or button. Courts have terms on its checkout page, but nothing ratified this type of implementation as ENFORCEABILITY required users to affirmatively indicate long as it is abundantly clear that the that they accepted the terms. The Ninth link contains the website terms and OF YOUR Circuit held, therefore, that Barnes & that checking a box or clicking a button WEBSITE’S TERMS Noble could not enforce the arbitration indicates acceptance of those terms. provision contained in the terms. This was essentially the implementation OF USE While the specific outcome in Barnes at issue in a 2012 case from the By Aaron P. Rubin and & Noble arguably is part of a Ninth Southern District of New York, Fteja Daniel A. Zlatnik Circuit trend of declining to enforce v. Facebook, Inc. Specifically, signing arbitration clauses on the grounds that up for Facebook required users to Operators of social media platforms and no contract had been formed, nothing click a button labeled “Sign Up,” and other websites typically manage their in the opinion limits the Ninth Circuit’s immediately below that button was risks by imposing terms of use or terms holding to arbitration provisions. The the text, “By clicking Sign Up, you are of service for the sites. As we previously case is an important cautionary tale for indicating that you have read and agree wrote, websites must implement all website operators. to the Terms of Service.” The phrase such terms properly to ensure that “Terms of Service” was underlined they are enforceable. Specifically, and operated as a link to the terms. users must be required to manifest The gold-standard The court reasoned that whether the acceptance of the terms in a manner plaintiff read the terms of service was that results in an enforceable contract. implementation is to irrelevant because, for the plaintiff But what specifically constitutes such display the full text and others “to whom the internet is acceptance, and what steps should an indispensable part of daily life,” website operators take to memorialize of the website terms clicking on such a link “is the twenty- and maintain the resulting contract? above or below that first century equivalent” of turning over This article attempts to answer these checkbox or button. a cruise ticket to read the terms printed practical questions. on the back. As sure as vacationers know they can read the small print on Use Boxes or Buttons their cruise tickets to find the terms to Require Affirmative To avoid the Barnes & Noble outcome, they accept by embarking on the cruise, Acceptance website operators should implement the plaintiff knew where he could two key features when users first Website operators should avoid read the terms of use he accepted by attempt to complete an interaction with the cardinal sin in online contract using Facebook. The parties formed an the site, such as making a purchase, formation: burying terms of use in a enforceable contract once the plaintiff registering an account, or posting link at the bottom of a website and clicked the “Sign Up” button. content: (1) present website terms attempting to bind users to those conspicuously, and (2) require users to This reasoning, however, does terms based merely on their use of click a checkbox or an “I accept” button not necessarily mean that an the website. Outside of some specific accompanying the terms. The gold- implementation like the one at issue (and, for our purposes, not particularly standard implementation is to display in Fteja will always will result in an relevant) circumstances, such the full text of the website terms above enforceable contract. Because it relied approaches, often confusingly referred or below that checkbox or button. If on the plaintiff’s admitted proficiency to as “browsewrap” agreements, will not they fit on a single page, that is helpful, in using computers and the Internet, result in a valid contract because there but an easy-to-use scroll box can work the court likened the “Terms of Service” is no objective manifestation of assent. as well. Website operators taking the link to the backside of a cruise ticket. (Note, though, that even so-called scroll box approach may consider This leaves room to argue for a different browsewrap terms may be helpful in requiring users to actually scroll outcome when a website operator some circumstances, as we described in through the terms before accepting should expect that novice computer this post.) them. users will be among its visitors. The Moreover, even website terms simple way to avoid that (perhaps Many website operators, however, presented through a “conspicuous” link far-fetched) argument is to expressly choose not to present the terms may not be enforceable if users are not identify the hyperlink as a means to themselves on the page where a user required to affirmatively accept them. read the contract terms. That approach is required to indicate acceptance.

2 Socially Aware, January 2016 succeeded in Snap-On Business Solutions v. O’Neil & Assocs., where the website expressly instructed users, “[i]mmediately SOCIAL LOOK following this text is a green box with an arrow that users may MEDIA BACK click to view the entire EULA.” These cases illustrate how important it is to expressly connect users’ affirmative actions to the terms of use. In particular, the checkbox or button and accompanying text should clearly indicate that the user’s click signifies acceptance of the website terms. The terms should be presented in a clear, readable 2015 typeface and be printable, and the “call to action” text should be unambiguous—not susceptible to interpretation as anything other than acceptance of the website terms.

• Most discussed topic (U.S.): Here are some examples: U.S. Presidential Election (2nd—Marriage Equality) • “By checking this box, I agree to the ‘Terms of Use’ • Most talked about athlete (global): presented above on this page.” Floyd Mayweather, Jr. • “By clicking ‘I Accept’ immediately below, I agree to the Facebook1 • Most talked about entertainer (global): ‘Terms of Service’ presented in the scroll box above.” Ed Sheeran • “Check this box ¨ to indicate that you accept the Terms • Most talked about movie (global): of Use (click this link to read the Terms of Use).” (In this Star Wars: The Force Awakens example, the website terms would be presented through a link, as in the Fteja case. The added instruction, “click this link to read the Terms of Use,” avoids any potential • Most liked photo: Kendall Jenner’s Heart Hair argument that a Fteja-type implementation only works • Most used hashtag: #LOVE where users can be assumed not to be novice computer • Most followed account: Taylor Swift users.) • Most followed brands: National Geographic, Nike, and Victoria’s Secret Ensure You Can Prove Affirmative Acceptance 2 Instagram Even website operators that properly implement website terms often neglect another important task: making sure they can prove that a particular user accepted the terms. One • Most popular hashtags: Overall: #LOVE, common approach—to present declarations from employees— Music: #OneDirection, TV: #KCA (Kids’ is illustrated in Moretti v. Hertz Corp., a 2014 case from the News: Choice Awards), #jobs, #Quran, Northern District of California. The employees in that case #ISIS, #PrayForParis, #LoveWins affirmed via declarations that (1) a user could not have used the 3 • Most tech brands : #iPad, #SoundCloud, website without accepting the website terms, and (2) the terms #Android, #Periscope, and #iPhone Twitter included the relevant provision when the use took place. The approach in Moretti, however, has a potential weakness: it depends on declarants’ credibility and their personal memory • Top Trending videos of 2015 (global): of when the terms of service included certain provisions. -- Silento—Watch Me (Whip/Nae Nae) Website operators can address that vulnerability by emailing a -- Clash of Clans: Revenge (Official confirmation to users after they accept the website terms and Super Bowl TV Commercial) then archiving copies of those messages. To limit the volume of email users receive, this confirmation could be included -- Crazy Plastic Ball PRANK!! 4 with other communications, such as messages confirming an -- Love Has No Labels | Diversity & YouTube order or registration. This approach has two benefits. First, the Inclusion | Ad Council confirmation email provides further notice to the user of the -- Lip Sync Battle with Will Ferrell, website terms. Second, instead of (or in addition to) invoking Kevin Hart, and Jimmy Fallon employees’ memory of historical facts to establish which terms were in effect at the relevant time, employees can simply authenticate copies of the messages based on their knowledge Sources of the messaging system. 1. http://yearinreview.fb.com/2015 3. https://2015.twitter.com/top-trends 2. http://blog.latergram.me/instagram-year-in- 4. https://www.youtube.com/playlist?list=PLSTz8jp review-2015/ Jdr5r5fzy7OA5o3fx5_5-BC1oN Socially Aware, January 2016 3 Provide Notice of Any of liability and dispute resolution must be clearly and conspicuously Changes provisions—as enforceable contracts. disclosed.

Some of the most difficult According to the complaint in In re implementation issues arise when a FTC CONTINUES Machinima, Machinima paid video website operator wishes to modify the bloggers (“influencers”) to promote website’s terms. Website terms often ENFORCING AD Microsoft’s Xbox One system by purport to allow the operator to change DISCLOSURE producing and uploading to YouTube the terms whenever it wishes, but videos of themselves playing Xbox One unilateral modifications may not be OBLIGATIONS games. Machinima did not require any enforceable if they’re not implemented disclosure of the compensation the properly because—like any other IN NEW MEDIA influencers received, and many videos contract amendment—modification of AND ISSUES A lacked any such disclosure. The FTC website terms requires the agreement of alleged that the payments would not both parties. Ideally, website operators WARNING TO be reasonably expected by YouTube should require users to expressly accept ADVERTISERS viewers, such that the failure to disclose any changes or updates through a them was deceptive in violation of mechanism like the one used to obtain By Julie O’Neill and Adam J. Section 5. In light of the Deutsch LA their acceptance of the website terms in Fleisher case, which dealt with endorsements the first place. In December 2014, we noted that the on Twitter that did not include proper disclosures, In re Machinima seems Many website operators, however, are Federal Trade Commission’s (FTC) uncontroversial. But what makes the understandably reluctant to add friction settlement with advertising firm case interesting is how close Microsoft to the user experience by repeating such Deutsch LA, Inc. was a clear signal to came to being swept up in it. legal formalities every time they modify companies that advertise through social the website’s terms. In those cases, media that they need to comply with operators should consider providing the disclosure requirements of Section users with clear advance notice of 5 of the FTC Act. On September 2, The Machinima case modifications. Such notice could specify 2015, the FTC announced a settlement provides both a clear when the changes will go into effect along the same lines with Machinima, and state that continued use after that Inc., a company promoting the Xbox warning and clear date will constitute acceptance of the One system. This new action indicates guidance to companies changes. For example, in Rodriguez that the FTC is serious about enforcing on how to minimize v. Instagram, Instagram announced compliance in this space, so companies a month in advance that the company need to make sure that their advertising the risk of a Section 5 planned to modify its terms, and the and marketing partners understand enforcement action. plaintiff continued to use the site after their obligations under Section 5. the effective date of the change. On those facts, the trial court found that A Quick Refresher on Online Microsoft Escapes Liability, the plaintiff agreed to the modified Advertising Disclosure Narrowly terms by continuing to use the service. Requirements While Instagram and other cases The FTC’s Endorsement Guides The FTC also issued a closing letter have indicated that unilateral changes describe how advertisers using reflecting that it had investigated require, at the very least, advance endorsements can avoid liability under Microsoft, and Microsoft’s advertising notice, other courts may be less willing Section 5 for unfair or deceptive acts agency Starcom, in relation to to enforce unilateral modifications or practices. Simply put, a customer influencers’ videos. (Starcom managed without express acceptance by the user, endorsement must be from an actual, the relationship with Machinima.) Even especially where the factual issue of bona fide user of the product or service though the FTC did not ultimately take notice is contested. Obtaining express and, if there is any material connection action against Microsoft (or Starcom), acceptance remains the safest approach. between the endorser and the the closing letter is significant because advertiser that consumers would not it makes clear the FTC’s position that a Following the above guidelines will reasonably expect but that would affect company whose products are promoted increase the likelihood that courts will the weight given to the endorsement— bears responsibility for the actions of view website terms—and the important such as payment or an employment its ad agencies—as well as the actions of risk mitigation provisions they contain, relationship—then that connection those engaged by its ad agencies. such as disclaimers, limitations

4 Socially Aware, January 2016 According to the closing letter, study reported that 40% of Internet 2. “Encouraging respectful behavior” Microsoft avoided an enforcement users have experienced harassment), discusses the prohibition of nudity, action because it had a “robust” yet open enough to foster discussion of hate speech and graphic content. compliance program in place that complex, and sometimes controversial, 3. “Keeping your account and personal included specific guidance relating topics. information secure” lays out to the FTC’s Endorsement Guides Facebook’s policy on fraud and spam. and because Microsoft made training This past year, certain companies relating to the Endorsement Guides have made some noteworthy changes. 4. “Protecting your intellectual available to employees, vendors and Perhaps most notably, Twitter, long property” encourages users to only personnel at Starcom. Furthermore, known for its relatively permissive post content to which they own the Microsoft and Starcom adopted stance regarding content regulation, rights. additional safeguards regarding introduced automatic filtering and sponsored endorsements and took swift stricter language in its policies Instagram regarding threatening language. action to require Machinima to insert After a series of highly publicized Also, Reddit, long known as the “wild disclosures into the offending videos. censorship battles, Instagram updated wild west” of the Internet, released its community standards page in April Given the increased reliance of a controversial new anti harassment 2015 to clarify its policies. These more- advertisers on social media campaigns, policy and took unprecedented detailed standards for appropriate the Machinima case provides both a proactive steps to regulate content by images posted to the site are aimed clear warning and clear guidance to shutting down some of the site’s more at curbing nudity, pornography and companies on how to minimize the controversial forums. harassment. risk of a Section 5 enforcement action. According to some, such changes came Not only must notice be provided of According to Nicky Jackson Colaco, as a result of several recent, highly any paid endorsements, regardless director of public policy, “In the old publicized instances of targeted threat of the medium in which they appear, guidelines, we would say ‘don’t be campaigns on such platforms, such but advertisers should also seriously mean.’ Now we’re actively saying you as “Gamergate,” a campaign against consider having in place specific can’t harass people. The language is just female gaming journalists organized policies and procedures to address the stronger.” FTC’s Endorsement Guides—as well and perpetrated over Twitter, Reddit as to ensure that their ad agencies and and other social media platforms. The old guidelines comprised a other involved parties comply with Below we summarize how some of the relatively simple list of do’s and don’ts— them. major social networking platforms are for example, the policy regarding addressing these difficult issues. abuse and harassment fell under Don’t #5: “Don’t be rude.” As such, the new THE TOP Facebook guidelines are much more fleshed out. SOCIAL MEDIA Facebook’s anti-harassment policy and The new guidelines clearly state, “By community standards have remained using Instagram, you agree to these PLATFORMS’ relatively stable over time. However, guidelines and our Terms of Use. We’re EFFORTS TO in March 2015, Facebook released a committed to these guidelines and we redesign of its Community Standards hope you are too. Overstepping these CONTROL CYBER- page in order to better explain its boundaries may result in a disabled policies and make it easier to navigate. account.” HARASSMENT This was largely a cosmetic change. According to Jackson Colaco, there By Aaron P. Rubin and Scott M. According to Monika Bickert, was no one incident that triggered Sawyer Facebook’s head of global policy Instagram’s decision. Rather, the Social networking platforms have long management, “We’re just trying to changes were catalyzed by continuous faced the difficult task of balancing explain what we do more clearly.” user complaints and confusion the desire to promote freedom of regarding the lack of clarity in content expression with the need to prevent The rules of conduct are now grouped regulation. In policing content, abuse and harassment on their into the following four categories: Instagram has always relied on users to sites. One of social media’s greatest 1. “Helping to keep you safe” details flag inappropriate content rather than challenges is to make platforms safe the prohibition of bullying and actively patrolling the site for offensive enough so users are not constantly harassment, direct threats, criminal material. bombarded with offensive content and activity, etc. threats (a recent Pew Research Center

5 Socially Aware, January 2016 The language of the new guidelines now “being disrespectful or offensive,” Second, users who breach the policies details several explicit rules, including “harassing me” or “threatening violence will now face heavier sanctions. the following: or physical harm.” The new tools have Previously, the only options were to 1. Nudity. Images of nudity and of also been designed to be more mobile- either ban an account completely or an explicitly sexual nature are friendly. take no action (resulting in much of the threatening language not being prohibited. However, Instagram Twitter also released a new blocked makes an exception for “photos sanctioned at all). Now, Twitter will accounts page during this round of begin to impose temporary suspensions of post mastectomy scarring and changes. This feature allows users to women actively breastfeeding.” for users who violate the rules but more easily manage the list of Twitter whose violation does not warrant a full 2. Illegal activity. Offering sexual accounts they have blocked (rather than ban. services, and buying or selling relying on third-party apps, as many drugs (as well as promoting did before). The company also changed Moreover, since Costolo’s statements, recreational use) are prohibited. how the blocking system operates. Twitter has tripled the size of its team There is a zero-tolerance policy Before, blocked users could still tweet handling abuse reports and added rules for sexual images of minors and and respond to the blocker; they simply prohibiting revenge porn. revenge porn (including threats of could not follow the blocker. Now, posting revenge porn). blocked accounts will not be able to Reddit view the profile of the blocker at all. 3. Harassment. “We remove content In March 2015, Reddit prohibited the that contains credible threats or In April 2015, Twitter further cracked posting of several types of content, hate speech, content that targets down on abuse and unveiled a new including anything copyrighted or private individuals to degrade or filter designed to automatically prevent confidential, violent personalized shame them, personal information users from seeing harassing and violent images and unauthorized photos or meant to blackmail or harass messages. For the first time, all users’ videos of nude or sexually excited someone, and repeated unwanted notifications will be filtered for abusive subjects. messages…We carefully review content. This change came shortly after Two months later, Reddit unveiled a reports of threats and consider an internal memo from CEO Dick Costolo controversial new anti-harassment many things when determining leaked, in which he remarked, “We suck policy that represented a significant whether a threat is credible.” at dealing with abuse and trolls on the shift from Reddit’s long time reputation platform, and we’ve sucked at it for as an online free-for-all. The company Twitter years.” announced that it was updating its Twitter has made two major rounds The new filter will be automatically policies to explicitly ban harassment of changes to its content regulation against users. Some found this move policies in the past year. These changes turned on for all users and cannot be turned off. According to Shreyas surprising, given Reddit’s laissez- are especially salient given the fact faire reputation and the wide range that Twitter has previously been Doshi, head of product management, “This feature takes into account a of subject matter and tone it had fairly permissive regarding content previously allowed to proliferate on its regulation. wide range of signals and context that frequently correlates with abuse site (for example, Reddit only expressly In December 2014, Twitter announced including the age of the account itself, banned sexually explicit content a set of new tools to help users deal with and the similarity of the Tweet to other involving minors three years ago, after harassment and unwanted messages. content that our safety team has in the much negative PR). past independently determined to be These tools allow users to more easily In a blog post titled “promote ideas, abusive.” flag abuse and describe their reasons protect people,” Reddit announced for blocking or reporting a Twitter it would be prohibiting “attacks and account in more specific terms. While Beyond the filter, Twitter also made two changes to its harassment policies. harassment of individuals” through the in the past Twitter had allowed users to platform. According to Reddit’s former report spam, the new tools allow users First, the rules against threatening language have been strengthened. CEO Ellen Pao, “We’ve heard a lot of to report harassment, impersonations, complaints and found that even our self harm, suicide and, perhaps most While “direct, specific threats of violence against others” were always existing users were unhappy with the interestingly, harassment on behalf of content on the site.” others. banned, that prohibition is now much broader and includes “threats of In March 2015, Reddit also moved to violence against others or promot[ing] Within “harassment,” Twitter allows ban the posting of nude photos without violence against others.” the user to report multiple categories: the subjects’ consent (i.e., revenge

6 Socially Aware, January 2016 porn). In discussing the changes in sensitive personal information, such as state’s data breach notification statute content regulation, Alexis Ohanian, bank account numbers and signatures, and impose restrictions on operators executive chairman, said, “Revenge that may surface in our search results.” of automated license plate recognition porn didn’t exist in 2005. Smartphones Some have questioned, though, why it systems (ALPRs), and one requires didn’t really exist in 2005…we’re taking took so long for Google to treat private law enforcement to obtain a warrant the standards we had 10 years ago and sexual information similarly to other for the collection of digital records and bringing them up to speed for 2015.” private information. location. All four bills went into effect at Interestingly, rather than actively the start of this month, January, 2016. policing the site, Reddit will rely on members to report offensive material to While “direct, specific A.B. 964, S.B. 570 and S.B. 34 moderators. threats of violence California passed the nation’s first data breach notification law in 2003, and the Reddit’s new policy defines harassment against others” were as: “systematic and/or continued state has since incrementally increased actions to torment or demean someone always banned, that the scope of personal data subject to the in a way that would make a reasonable prohibition is now much law and heightened obligations in the person (1) conclude that Reddit is not event of a breach. a safe platform to express their ideas or broader and includes Continuing this trend, on October 6, participate in the conversation, or (2) “threats of violence 2015, Governor Brown signed into law fear for their safety or the safety of those against others or three amendments. around them.” promot[ing] violence The first, A.B. 964, adds to the law a As a result of the new policies, Reddit against others.” definition for the term “encrypted.” permanently removed five subreddits According to Assemblyman Ed Chau, (forums) from the site: two dedicated the addition is meant to encourage to fat-shaming, one to racism, one businesses to adopt encryption to transphobia and one to harassing As social media grows up and becomes standards. members of a progressive website. firmly ensconced in the mainstream, it Apart from the expected criticisms of is not surprising to see the major players The second amendment, S.B. 570, censorship, some commentators have striving to make their platforms safer specifies the form and content of the condemned Reddit for the seemingly and more comfortable for the majority notices that must be sent to consumers random selection of these specific of users. It will be interesting, though, in the event of a breach. Notices must, subreddits. Even though these subreddits to watch as the industry continues to for example, be titled “Notice of Data have been removed, many other offensive wrestle with the challenge of instituting Breach” and present information under subreddits remain, including a violently these new standards without overly prescribed headings, such as “What anti-black subreddit and one dedicated to restricting the free flow of content Happened,” “What We Are Doing” and suggestive pictures of minors. and ideas that made social media so “What You Can Do.” appealing in the first place. Google The last bill in the trifecta, S.B. 34, includes information collected from In June 2015, Google took a major step ALPRs, when used in combination with in the battle against revenge porn, a CALIFORNIA an individual’s name, within the scope form of online harassment that involves PASSES FOUR of personal information that falls under publishing private, sexually explicit the breach notification law. That bill photos of someone without that person’s BILLS PROTECTING also requires ALPR operators to have consent. Adding to the damage, such PRIVACY RIGHTS reasonable security procedures and photos may appear in Google search practices, as well as a privacy policy. S.B. results for the person’s name. Google has By Julie O'Neill and Libby J. 34 provides for a private cause of action now announced that it will remove such Greismann for individuals harmed by violations. images from search results when the This past October was a big month for subject of the photo requests it. California's privacy regime. S.B. 178 Amit Singhal, senior vice president of Just two days later, on October 8, 2015, In a landmark move, Governor Google Search, stated, “This is a narrow Governor Brown signed CalECPA, Jerry Brown signed into law four and limited policy, similar to how we which bars a state law enforcement bills further protecting Californians’ treat removal requests for other highly agency or other investigative entity from privacy rights: Three strengthen the

7 Socially Aware, January 2016 compelling a business to turn over any London’s Madame Tussauds. But Zoella book for non-broadcast advertisements metadata or digital communications— and Alfie are not alone; there is now a in the UK and requires that advertising including emails, texts, or documents whole generation of vloggers rivalling must be legal, decent, honest and stored in the cloud—without a warrant. film and sports stars in the popularity truthful. The CAP Code was extended ranks. Indeed, we now even have a host to cover social media in 2011. The Cap The law also requires a warrant to track of social media talent agencies formed to Code is enforced by the Advertising the location of electronic devices like help propel vloggers to superstardom. Standards Authority (ASA), the UK mobile phones, or to search them. regulator responsible for advertising Vloggers are particularly popular with content in the UK. The ASA has the Though a handful of states have warrant young people who enjoy the more power to remove or have amended any protection for digital content or for GPS intimate connection they can have with ads that breach the CAP Code. location tracking, California is the first these approachable idols. Therefore, to enact a comprehensive law protecting brands who want to target a young location data, content, metadata, and demographic are increasingly keen to Rule 2.1 of the CAP Code states that device searches. work with vloggers. This collaboration marketing communications must be typically involves brands paying vloggers obviously identifiable as such. Rule 2.4 HOW UK BRANDS to feature in “advertorial vlogs,” i.e., states that marketers and publishers videos created in the usual style of the must make clear that advertorials THAT USE VLOGGER vlogger, but with the content controlled are marketing communications, e.g., by the brand. by labelling them “advertisement ENDORSEMENTS & feature.” These rules apply to marketing SOCIAL MEDIA FOR Now, of course, there is nothing communications on vlogs in the inherently wrong with there being same way as they would to marketing MARKETING CAN a commercial relationship between communications that appear on blogs a brand and a vlogger from a legal or other online sites. But as the CAP STAY ON THE RIGHT perspective. However, particularly where Executive noted last year, a number of SIDE OF THE LAW you have the influence of celebrity, marketers have “fallen foul of the ASA plus an impressionable audience, by blurring the line, intentionally or not, By Susan McLean and Dom vloggers and brands need to be very between independent editorial content Rothbarth careful that they don’t fall foul of written about a product and advertising consumer protection rules that are in Vloggers have become the reality stars copy.” place to protect consumers from unfair of our times. For an increasing number advertising practices. In August 2015, of social media users, what was once the UK advertising regulator issued new a hobby is now a lucrative career. You Viewers should be guidance to help vloggers and brands be may be surprised to learn that Felix responsible and stay on the right side of aware that they are Kjellberg (aka “PewDiePie”), a 25-year- the law. In this blog post, we will identify old Swedish comedian and the world’s selecting an ad to view the key issues raised by the guidance. most popular YouTube star, is reported before they watch it so We will also provide an overview of some to have earned $8.5 million in 2014. of the other key legal issues that brands that they can make an The UK has its own vlogger superstars need to be aware of when using social informed choice. in the form of Zoella and Alfie Deyes. media for marketing and advertising in Together, this power couple of social the UK. media has amassed 12 million YouTube In November 2014, the ASA’s ruling subscribers, 6.8 million Instagram Vlogs against Mondelez provided a clear example of a brand failing to comply followers and almost 6 million Twitter The Consumer Protection from Unfair with the CAP Code. Mondelez had followers. Zoe Suggs (aka “Zoella”), Trading Regulations 2008 (“CPRs”) engaged five celebrity vloggers 25, started vlogging in 2009 and has prohibit certain unfair commercial to promote its Oreo cookies by since become a brand in fashion and practices. These include using editorial participating in a race to lick cream beauty marketing, publishing a novel content in the media to promote a off a cookie as quickly as possible. The and creating a line of products. Alfie, product where a trader has paid for the channels featuring the vlogs typically 21, started his Pointless vlog when he promotion without making that clear contained non-promotional content, was 15 and has since published a series (advertorial). of books. It was even announced earlier and the vlogs failed to clearly indicate this year that tourists will soon be able The Committee of Advertising Practice the commercial relationship between to see waxworks of Zoella and Alfie at Code (the “CAP Code”) acts as the rule Mondelez and the vloggers. The

8 Socially Aware, January 2016 reference to “Thanks to Oreo for making the video is an ad before engaging. brand provides the vlogger with free this video possible” might indicate Labels such as “ad,” “ad feature,” products on the condition that they are that Oreo had been involved in the “advertorial,” or similar are likely to reviewed independent of any brand process, but did not make clear that the be acceptable, whereas labels such as input, then, as the brand retains no advertiser had paid for and had editorial “sponsored by,” “supported by” and control over the vlog, the video would control over the videos. As a result, the “thanks to X for making this possible” not have to be labelled as an advertorial. advertorials were banned. should be avoided, as these would not However, in such circumstances, the make sufficiently clear that the brand vlogger should disclose to consumers In another high-profile case, in May had control over the content of the vlog. that the vlogger has an incentive to talk 2015, a YouTube video providing Viewers should be aware that they are about the product, along with the nature makeup tutorials featuring the popular selecting an ad to view before they watch of the incentive, to ensure compliance vlogger Ruth Crilly, who has 300,000 it so that they can make an informed with the CPRs. subscribers on YouTube, was banned choice. Finding out that something is by the ASA for failing to clearly identify an ad after having selected it, at the end Other Social Media Marketing itself as marketing material. The video of a video or halfway through, is not Vlogging isn’t the only aspect of appeared on the “Beauty Recommended” sufficient. YouTube channel, which is operated by social media marketing that creates Procter & Gamble, with the intention Commercial breaks/product compliance challenges, of course. of marketing its Max Factor range placement. In terms of commercial There are other issues that brands need of products. The ASA stated that the breaks or product placement within a to be aware of when advertising and channel page provided “no indication” vlog, it needs to be clear when the ad marketing using social media in the UK. that it was a Max Factor marketing tool, or product placement starts. This could We have outlined some of these below. and emphasized that “it wasn’t clear be via onscreen text, a sign, logo or the For issues specific to the UK financial until a viewer had selected and opened vlogger explaining that he or she has services sector, please see our previous the video that text, embedded in the been paid to talk about a particular item blog post: UK’s Financial Services video, referred to Procter & Gamble…. by the brand. Regulator: No Hashtags in Financial We consider that viewers should have Promotions. been aware of the commercial nature of Vlogger-promotion. If the sole content Native Advertising (written the content prior to engagement.” of a vlog is a promotion of the vlogger’s own merchandise, this would not be advertorial). A native ad is advertising that resembles editorial content. Native Guidance considered an advertorial. Rather, it would be a marketing communication. ads are a popular form of content In August 2015, the CAP Code Executive The video title should make clear that marketing, but again raise concerns published guidance to help vloggers the video is promoting the vlogger’s that consumers may not be aware that and brands better understand their products, but the vlog itself will be the content is advertising, in breach obligations under the advertising rules. unlikely to need labelling as an ad if the of the CPRs and Cap Code. Guidance While the guidance is not binding, it’s context makes clear that it’s a marketing issued in February 2015 by IAB a helpful statement of the rules as they communication. (the UK trade association for digital apply to vlogs. advertising) advised advertisers to Sponsorship. Where a brand has provide consumers with prominently Advertorial. Where a brand collaborates sponsored a vlog, but the brand has no visible visual cues to enable them to with a vlogger on a video that is control over the vlog, this would not understand, immediately, that they are produced by the brand and published be considered an ad and would not be engaging with marketing content that on the brand’s website or social media caught by the CAP Code. However, to has been compiled by a third party in a page, this is very likely to be a marketing ensure compliance with the CPRs, the native ad format and is not editorially communication—but it wouldn’t be an vlogger should give a nod to the sponsor independent. The guidance suggests advertorial. However, where a vlog is in order to disclose the nature of the clear brand logos and the use of different made in the usual style of the vlogger, commercial relationship. design formatting for native ads. It also but the content of the vlog is controlled advises the publisher or provider of the by the brand and the vlogger has been Free Items. Vloggers may be sent native ad format to use a reasonably paid (not necessarily with money) for free items by a brand. Where there is visible label that makes clear that a the vlog, this would be an advertorial. no condition attached to the item by commercial arrangement is in place. Because the extent of the brand the brand and the vlogger can choose involvement may not be obvious to the whether or not to cover the item in a Employee Endorsements. Companies viewer, this needs to be made explicit vlog, this would not be an ad caught by are keen to encourage their employees to upfront so that viewers are aware that the CAP Code. In addition, where the use social media and become advocates

9 Socially Aware, January 2016 for the company. However, companies #hungry#spon.” While the final tweet includes positive comments, (ii) re- must be careful; if an employee chooses was clearly labelled as an advert, the tweet positive tweets from users, or (iii) to discuss his or her employer’s brand ASA ruled that the first four tweets only allow users to post comments on the favorably on social media, then this became marketing communications at company website. To ensure that such is likely to be construed as an advert the point the fifth and final tweet was content is responsible, accurate and under the CAP Code, even where the sent (as the first four tweets contained not misleading, harmful or offensive, employee is acting independently no marketing references). As a result, companies should monitor user- and not at the request of his or her the ASA ruled that the campaign did not generated content to ensure that the employer. An employee endorsement breach advertising standards as the fifth content is appropriate for the likely that is not transparent also runs the tweet (and as such, the entire campaign) audience and preserve documentary risk of breaching the CPRs. Therefore, was clearly identifiable as an advert. evidence to substantiate any claims. employees must make clear that they are affiliated with their employer when Advergames. Advergames are online making any company endorsements Vloggers and brands video games that are created in on social media. Organizations should order to promote a brand, product or also provide employees with clear social need to be very careful organization by immersing a marketing media policies and training to avoid any that they don’t fall foul message within the game. In May incident of inadvertent advertising. 2012, the ASA published guidance that of consumer protection made clear that advergames will be Ads via Twitter and Celebrity rules that are in place considered advertising and are subject Endorsements. As mentioned above, to the CAP Code. For further discussion the CPRs and CAP Code require users to protect consumers on advergames, please see our previous to be aware that they are viewing an from unfair advertising blog post: What Are the Rules of the advert. In terms of Twitter, this means practices. Advergame in the UK? that promotional tweets should be accompanied by the hashtag #spon or Conclusion #ad. This is particularly the case where The key message for organizations the advert may not be immediately However, Nike was less successful who want to use social media in apparent as a promotional tweet, e.g., in June 2012. Soccer players Wayne their marketing campaigns is to treat where it is in the form of a celebrity Rooney and Jack Wilshere tweeted consumers fairly and to be upfront and endorsement. As with promotions using “My resolution – to start the year transparent. But good practice isn’t just vloggers, companies are increasingly as a champion, and to finish it as a about legal compliance; it will also help keen to use celebrities in connection champion… #makeitcount.gonike.me/ maintain consumers’ respect for and with promotions in order to increase the makeitcount.” While the ASA agreed trust in your brand. If your social media companies’ brand awareness within that that the tweets were obviously marketing campaign hits the headlines, you want it celebrity’s group of followers. communications, the reference to to be for all of the right reasons. the Nike brand was not sufficiently In March 2012, an advertising campaign prominent. The tweets also lacked #spon by Mars involved reality star Katie or #ad to signify advertising. As it was Price tweeting about the Eurozone not sufficiently clear to all readers that crisis, and soccer player Rio Ferdinand the tweets were part of a marketing engaging his followers in a debate campaign, the advertisement was about knitting. The campaign involved banned. four teaser tweets by each celebrity to focus attention on their Twitter profile User-Generated Content. Companies (but with no marketing content), also need to be wary when using user- culminating with a final tweet that was generated content to promote their an image of the celebrity with a Snickers brand. For example, companies may chocolate bar and the line “you’re not be deemed to be advertising if they: you when you’re hungry @snickersUK (i) provide a link to a user blog that

10 Socially Aware, January 2016 Social Media 2016: Addressing Corporate Risks

Don’t miss Socially Aware’s and PLI’s upcoming Social Media Conference on February 9th (in San Francisco and via webcast) and on February 24 (in New York City).

We’ll be covering emerging social media-related legal risks and best practices for addressing such risks.

For more information or to register, please visit PLI’s website at pli.edu/content.

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