Media and Technology

Removing Content from Social Media
25 May, 2017

This week saw the publication of allegedly leaked internal Facebook policy documents which set out what is purported to be the company’s latest approach towards policing online content.

 

Abusive or damaging online content can inflict harm both financially and emotionally when it is used to defame, bully, harass, and intimidate others. This applies to businesses as well as individuals.

 

Social media platforms on the whole still rely upon users taking the first step by reporting damaging content and, whilst the reporting process has been made easier, rather frustratingly for complainants not every report will result in a removal of content.

 

If damaging content about your business isn’t taken down following a report to a social media platform, what other action can you take?

 

The answer broadly depends upon why the content is damaging and the type of damage it causes:

 

Reputational Damage

It may be possible to bring a claim for defamation if the content damages  your business’ reputation.

 

In defamation proceedings, if damaging content has not been taken down prior to trial, in addition to a claim for damages and a permanent injunction preventing the comments from being repeated in the future, a party will normally seek an order from the court that the content is taken down.

 

Harassment

Where someone is subjected to “a course of conduct that causes them distress or alarm” this may give rise to a claim under the law of harassment, which can be both a civil and criminal action.  A business may be able to make a claim for harassment if 2 or more of its employees are harassed by a person (or another business) trying to get their employer to do or not do a particular thing. There is a clear risk of harm to the business, as well as to your targeted employees.

 

The remedies available in a harassment claim include an injunction (to restrain the individual (or organisation) from posting further content) and a claim for damages. In addition, if a civil injunction is breached, the claimant can apply for a the defendant to be arrested.

 

Breach of Confidentiality

Where a business has its confidential information published online, it may be able to bring a claim for breach of confidentiality against the disclosing party. 

 

The remedy for such a claim would be an order that the content be taken down; an injunction to restrain further publication (to mitigate the loss); and damages  as compensation for the loss suffered.

 

IP Infringement

IP infringement in the social media context often relates to trade mark and copyright infringement.

 

Copyright infringement can occur when a substantial part of another’s work (which in the commercial context, often constitutes copying online content), is reproduced without permission. A common infringement is a ‘copy-paste’ of the terms of business for example, or the reuse of a photo/image from another’s social media account.

 

The remedies available are similar for both copyright and trade mark infringement: a court order that the content is taken down; an injunction preventing further misuse; and a claim for damages.

 

Conclusion

If a report to the social media platform in question is not successful in having damaging content taken down, there are other potential remedies available. It is recommended that legal advice is sought in any event at an early stage so that an effective plan can be put in place.

 

For more information please contact Will Charlesworth on will.charlesworth@cripps.co.uk or +44 (0)1892 506 004. 

 

Related information

Dealing with damaging online criticism 
Who owns social media content? 


The Government Launches the (delayed) Digital Strategy
8 March, 2017

The Digital Strategy outlines the Government’s plans for investment and development in the digital sector for the foreseeable future. It outlines priority areas for investment,  emphasizing the increasingly crucial role of digital infrastructure and connectivity in modern life.

 

The Government also wants to make the UK as appealing as possible for growing a digital business, particularly in the areas of FinTech (Financial Technology), EdTech (Educational Technology) and video games.     

 

A selection of key points include:

Digital infrastructure

  • Continuance of the plan to roll out 4G and superfast broadband by 2020.
  • £1bn programme for development and uptake of next generation digital infrastructure – including full fibre broadband plans and 5G.

 

Health                          

  • £4.2 billion invested over the next five years in areas such as electronic patient records, apps and wearable devices, telehealth and assistive technologies.

 

Digital Skills

  • Formation of a new Digital Skills Partnership led by Government.
  • Coding becoming part of every stage in the national curriculum.

 

Investment boost

  • £17.3m funding from the Engineering and Physical Sciences Research Council (rather than fresh investment) to support the development of new robotics and Artificial Intelligence technologies in UK universities.

 

Creating five new international tech hubs in emerging markets

  • Creating five tech hubs in emerging markets to create and develop partnerships between UK companies and local tech firms. These hubs will aim to help provide British businesses with a global competitive edge and drive collaboration on skills, innovation, technology, and research and development.

 

Businesses may still however be looking to the Government for more concrete and detailed plans and initiatives and, crucially, funding to help them prepare for an increasingly digitalised industrial environment.   As well as looking for a generally flexible regulatory environment, and an immigration system allowing local labour shortages to be filled where needed, business leaders have identified as key concerns rolling out broadband to business parks and increasing mobile coverage in rural areas.  Commentators have also remarked that the rapid rise in process automation and artificial intelligence requires a change in focus in education and job training to start now, at all levels, in order to create a work force appropriately skilled for the world market, placing an emphasis on skills and talents that are not likely to be quickly overtaken by machines – such as those involving high level creative thinking or highly complex manual tasks.        

 

The full paper can be read here – https://www.gov.uk/government/publications/uk-digital-strategy

 

If you require further information on this, please contact Harry Partridge on  +44 (0)1732 224 092 or harry.partridge@cripps.co.uk 


“Your Ad Here” The problems with online advertising – can you control where your ad ends up?
1 March, 2017

Recent press reports have highlighted that adverts for some well known brands have ended up on some very unsavoury websites, and as a result a number of companies have said they are pulling their advertising from the UK.  But is there a way in which you can benefit from online advertising without putting your brand at risk?

 

What did we have before?

“Traditional” online advertising involves agents manually buying advertising space for their clients, in much the same way as any other form of advertising. The human touch means that (hopefully) some thought goes into where adverts are placed, and the agent’s market knowledge and judgment comes into play. Yet it also means that adverts can’t be targeted as precisely, and the buying process is dependent on human interaction so it can only move at a certain pace.

 

Where are we now?

Manual placing of advertising is increasingly being replaced by programmatic advertising, in which the purchase and placement of adverts is tailored (whether by time, user, or context) in an effort to maximise impact. The complexities of the tailoring criteria and the instantaneous purchases needed require that programmatic advertising is (as the name suggests) carried out using algorithms.

 

So what’s the problem?

While that automation can deliver huge benefits in terms of efficiency and cost, the lack of a human involvement in every stage of the purchasing process can cause some serious issues. A number of businesses have recently found their adverts displayed alongside inappropriate or illegal content, including extremist videos. The potential for brand damage here is significant, and businesses only have limited remedies against the agencies which carried out the purchases on their behalf.

 

So what do we do?

Although some businesses have responded by pulling UK programmatic advertising altogether, brands wishing to still take advantage of programmatic advertising have some alternatives to minimise any risk of being associated with inappropriate content. Businesses should take care to select an established provider of programmatic advertising (with appropriate processes in place to prevent reputational damage), conduct due diligence on an agency’s buying policies, request general obligations within contracts to avoid brand damage, look to agree whitelists and blacklists of appropriate and inappropriate sites, and consider what level of buying autonomy they are prepared to give to their agency.

 

For assistance and advice in relation to advertising and media buying contracts, please contact Elliot Fry on +44 (0)1732 224 034 or elliot.fry@cripps.co.uk.


Personal data use in marketing: a changing landscape
23 January, 2017

The past few years have seen a crackdown from the Information Commissioners’ Office (ICO) on the use of personal data by organisations in relation to their marketing communications. Most recently, British Heart Foundation (BHF) and the RSPCA were investigated and fined for “wealth screening” their donors – piecing together donors’ information from other sources and trading donor data with other organisations. These fines are part of a wider movement in this area, putting greater demands on organisations which process individuals’ data, and this looks set to continue with the introduction of further regulation coming in next Spring in the form of the General Data Protection Regulation (GDPR).

 

Practices under scrutiny

 

In the most recent case, the ICO identified three practices by BHF and the RSPCA which breached data protection rules.

 

The first of these, “wealth screening”, involved the charities hiring wealth management companies to analyse their donors’ personal data, and data from other sources, to try to ascertain how much money they might be persuaded to give. The charities did not make the donors aware that they were doing this or obtain the donors’ consent to use their personal data in this way.

 

The second, “data and tele-matching”, involved the charities employing companies to use donors’ data to discover additional personal information about them. For example, they might use contact information provided by a donor such as a telephone number to discover further information such as their email or postal address, in order that they could contact them through further channels.

 

Finally, both the RSPCA and BHF took part in a scheme called Reciprocate, in which they shared their donors’ personal data with other charities in the scheme in order to identify possible future donors. This involved the disclosure by charities of millions of donors’ data. In the data collection process, both charities offered their donors the opportunity to opt out of their data being shared with “similar organisations”, which the ICO ruled was not sufficient to constitute valid consent, particularly as the scheme included such a broad range of charities that donor data was shared between considerably different organisations. Moreover, it was later discovered that the RSPCA had shared donors’ data even where they had asked to opt out of their data being shared.

 

All three of these practices are common in the charity sector and others, and both charities appeared to express surprise that their practices were illegal. That they were investigated and fined for practices they did not see as problematic demonstrates the importance of maintaining an awareness of new regulation in this area as well as the ICO’s guidance and views, especially when, as now, the laws are getting tougher all the time.

 

An increasingly demanding regulatory regime

 

The above case follows in the same direction of travel as a decision last year, in which the First-tier Tribunal ruled that Thomas Cook had not obtained valid consent to pass on its marketing recipients’ data to Optical Express. This meant that when Optical Express sent those recipients its own marketing texts, it breached the Privacy and Electronic Communications Regulations (PCRs). In order for consent to be valid, the Tribunal ruled, the recipient must freely give a specific and informed indication of their wishes. They must be made aware of who is going to process their data, what it will be processed for and anything else necessary to ensure it is processed fairly. Because Thomas Cook did not tell its recipients that their data would be processed by Optical Express or specify what products would be marketed to them, they did not obtain sufficient consent and breached Regulation 22(2) of the PCRs.

 

The Optical Express ruling followed the ICO’s new guidance for direct marketing, published in 2016, which strongly advises against the use of general opt-in consents to third party marketing communications. Under this guidance, a consumer ticking a box stating, for example, “Tick here to confirm that you are happy to receive marketing emails or texts from selected third parties” is unlikely to be considered valid consent. Further, even where consent is freely and properly given, it is likely to remain valid for only six months.

 

The ICO’s guidance makes it clear that where organisations receive an individual’s contact details from a third party (as Optical Express did from Thomas Cook and as the RSPCA and BHF did from the other organisations in the Reciprocate scheme), those recipient organisations must carry out rigorous checks before relying on the indirect consent (i.e. consent originally given to a third party).

 

The guidance goes on to state that indirect consent is highly unlikely to be valid for calls, texts or emails and that whilst the use of bought-in marketing lists is not banned, organisations must take steps to ensure the list was compiled fairly and accurately reflects peoples’ wishes. In most cases this will require each recipient organisation to be individually named as a recipient of the data or to fall within a precisely defined category of organisation with whom the data will be shared, for example by using the following wording “Tick here to confirm that you are happy for us to share your information with [name of charity] / [other animal welfare charities operating in the UK] and to receive marketing emails or texts from such charities”.

 

Tougher laws to come

 

The direction of the law, moving towards tougher rules for companies who process personal data and higher fines for those that fail to comply, is set to continue over the next few years. In particular, a new EU data protection framework has now been agreed and adopted in the form of the General Data Protection Regulation (GDPR), which will come into force on 25 May 2018. This law unifies European data protection regulations, creating a tougher regime overall and one that applies to all companies targeting consumers in the EU, including those based outside the EU.

 

Going forward, all companies which control or process personal data in relation to offering goods or services in the EU will be subject to the GDPR, and may need to appoint a representative in the EU. The GDPR requires such companies to demonstrate their compliance through maintaining records, conducting impact assessments on their processing and actively integrating data protection measures with their business processes. Importantly, their obligations to provide information to data subjects will become more onerous; in particular, companies will be required to inform individuals of their ability to withdraw their consent and for how long they will store their data.

 

In view of the recent cases above and the tighter regulations to come, companies should review their current data protection policies and marketing practices as a matter of priority to ensure they are prepared for the coming changes, and in particular ensure they have individuals’ fully informed and freely given consent before they use personal data for marketing.

 

For further information about marketing or any issue relating to data protection, please contact Kathryn Rogers on kathryn.rogers@cripps.co.uk or +44 (0)1892 506 147  or Elliot Fry on Elliot.fry@cripps.co.uk or +44 (0)1732 224 034.

 

 


Prices – new guidance on sales, promotions and price comparisons
12 January, 2017

On-line and bricks and mortar retailers need to ensure they comply with laws regulating how you can display your prices.  The Trading Standards Institute has released some new guidance for traders on pricing practices, giving some good examples of what retailers need to consider in relation to pricing.  The law on this hasn’t changed, but the guidance is useful for businesses who supply to consumers, and includes advice on using reference pricing, time limited offers, additional charges, RRP comparisons and “up to” and “from” offers amongst others, as well as some useful checklists and tips.  As Trading Standards enforces the relevant regulations within the UK, understanding their view on how the rules should be interpreted is helpful.

 

The guidance (available here) also emphasizes the importance of keeping evidence to justify your pricing practices – including text messages to show how prices are communicated, records of stock levels during price promotion periods, and details of your competitor’s prices if you are comparing these to your own.

 

For more information on pricing or any other aspect of consumer law, please contact  Kathryn Rogers on +44 (0)1892 506 147 or Kathryn.rogers@cripps.co.uk.

 

 


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