Twitter can be a fantastic marketing tool, but you need to be aware of the legal implications when you use it for your business.
1. Make sure you comply with advertising regulation
The CAP Code now applies to websites, Facebook and Twitter (and any other non-paid-for online space under your control such as other social networking sites). The CAP Code says, amongst other things, that advertising should:
- be legal, decent, honest and truthful.
- be prepared with a sense of responsibility to consumers and society.
- respect the principles of fair competition generally accepted in business.
- not mislead by inaccuracy, ambiguity, exaggeration or otherwise
The Advertising Standards Authority (“ASA”) is generally reactive in that it tends to deal with complaints received rather than actively reviewing marketing communications. This may influence the approach to compliance. However it is worth noting that the ASA’s sanctions are also being increased so that it can:
- Name and shame offenders, both on the ASA’s website and on paid-for advertisements on internet search engines which highlight continued non-compliance.
- Remove paid-for search advertisements that link directly to the non-compliant marketing communication on the advertiser’s own website or other non-paid-for space online under its control.
2. If you are paid to endorse products, make this clear in your tweets
One way to do this might be to include the word “#spon” or “#ad” in your tweet, but you must make sure that all the circumstances of your tweet comply with the advertising regulations set out in point 1 above. The ASA recently investigated complaints about Rio Ferdinand and Katie Price advertising Snickers chocolate bars by sending out a series of unexpected tweets (Rio Ferdinand’s were about knitting and Katie Price’s were about the Euro zone economic crisis), followed by a tweet saying “You’re not you when you’re hungry @snickersUk #hungry #spon” with a link to a picture of the relevant celebrity eating a Snickers bar.
The complaints were that it was not clear from the tweets that the celebrities were being paid to advertise the chocolate bars, in particular the first “teaser” tweets which mentioned neither Snickers nor sponsorship. In this case the ASA did not take any further action because, although the first four tweets formed part of an “orchestrated marketing campaign”, they did not mention Snickers, and the final tweet made it clear that the celebrities were being paid for the endorsements.
In this case the ASA accepted that the sponsorship was made clear by a combination of:
- the photos of the celebrities with the Snickers bars; and
- the use in the final tweet of the Twitter phrase “#spon” (meaning “sponsored”).
If you are paid to endorse products, then you will have to check very carefully that your particular tweets make this clear.
3. Don’t make any defamatory statements
At least two people have faced claims for libel or slander after making comments about another person on Twitter. The first was a politician who claimed on Twitter that his rival in a by-election campaign had been removed from a polling station by the police. The rival claimed in the High Court that the statement was untrue and defamatory and the Twitter user was reportedly obliged to pay £3,000 in compensation plus both sides’ legal costs.
The second is an Indian business-man who is facing a libel claim from former New Zealand cricket captain, Chris Cairns, after he made match-fixing claims on Twitter against Cairns. The claims (which Cairns states are “wholly untrue”) were repeated on a cricket website. These cases demonstrate the need to be very careful when writing about other people on Twitter and other social networking forums online.
4. Tweets are considered public property so don’t disclose confidential information
We’ve all heard of emails “going viral” and so can tweets. Tweets can be published in other media, including newspapers, and may be credited to you. So don’t write anything in a tweet which you would not want to read in a newspaper with your name next to it! Remember that even replies to individual tweets or re-tweets are still public statements. You must also avoid disclosing any confidential information about you, your clients or any third party.
5. Don’t infringe anyone’s intellectual property
You should not tweet anything which might be protected by copyright or any other intellectual property right. This includes all sorts of material, including photos and articles, so check with the author or owner first and if in doubt, don’t tweet it.
6. If you have employees, put in place a social media policy
As a business owner, you and your business could be affected by tweets sent by your employees. So you should put in place a social media policy and make sure your staff is aware of it. We can help you with your social media policy, so get in touch if you would like our help with this.
7. If you are an employee, state that the views you express are yours rather than your employer but still be careful what you say!
You can do this in your Twitter profile. However, be warned that you cannot stop people making the link between your tweets and your employer, and this could land you in trouble. A member of staff at the Department of Transport had a disclaimer in her Twitter profile stating that the tweets were personal opinions and were not representative of her employer. This disclaimer did not stop The Independent from publishing her tweets (about her job, her feelings towards work and wider political issues such as describing a course leader as “mental” and posting links to tweets attacking government “spin” and Whitehall waste) in an article about her employer. She complained to the Press Complaints Commission, but they found that because tweets are public property this was not an invasion of her privacy.
8. Jurors must not discuss or comment on cases
If you are a juror you could be found guilty of contempt of court if you tweet any information about your case. Contempt of court can be punished by a prison sentence.
9. Court documents can be served on you via your twitter account
In a case where a twitter poster was impersonating someone else, there was no easy way of identifying the impersonator, so the court allowed court papers to be served on the Twitter account. The victim was Donal Blaney, who runs a blog called “Blaney’s Blarney”. The impersonator had set up an account called @Blaneysblarney together with a photograph of the real Donal Blaney and a link to the real blog. The High Court has also allowed court proceedings to be served via Facebook where the defendant’s postal address was uncertain. So don’t think that hiding behind a Twitter alias will protect you.
10. Freedom of information requests can be made via Twitter
If an authority has a Twitter account, then freedom of information requests to that authority can be made via Twitter, as long as the requestor provides his or her real name (either in their Twitter account name or their Twitter profile) and an email address. This was confirmed by the Information Commissioner’s Office in its monthly newsletter, which stated that the authority should reply to the request either by email or by publishing the reply on the authority’s website and sending to the requestor a link to the relevant webpage. The request need not even be tweeted directly to the authority. It is sufficient to refer to the authority in an “@mention” (e.g. “@ICOnews”), because the authority is able to check for @mentions.
For free solicitors advice or if anyone knows any other legal issues to be considered when using twitter, please do let us know and we will add them to the list.
© Suzanne Dibble, small business law expert 2012