Social Media and User Generated Content: Business Trends...

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Social Media and User Generated Content: Business Trends and Legal Issues

September 27, 2011

Social Media is much more than just a Facebook jcampaign…

Social Media & User Generated Content 2

Connectivity, of people and our devices, are changing the y, f p p , g gway we operate

Every 60 seconds…

Social Media & User Generated Content

Source: Go-Globe, June 2011

3

It is changing the way that customers engage with g g y g gbusiness!

Social Media Traditional Media

AuthenticityAuthenticity

Social Media Traditional Media

Real conversationsReal conversations Stay on key messagesStay on key messages

CollaborationCollaboration

InformationInformation

One way deliveryOne way delivery

Scheduled releasesScheduled releasesReal time Real time

Many contributeMany contribute

RecognitionRecognition Individuals rewardedIndividuals rewarded Customers purchase a productCustomers purchase a product

TransparencyTransparency Open disclosure Open disclosure Maintain brand image Maintain brand image


Five major trends are influencing social media use. Five major trends are influencing social media use.

Local/GlobalLocal/GlobalSocialSocialMobile Mobile Local/GlobalLocal/Global

RealReal--timetimeMediaMedia evolutionevolution


There are 5 top Social Media strategies that leading 5 p g gbrands have adopted

Customer ServiceBrand Reputation

Product DevelopmentMarketing and Sales Product DevelopmentMarketing and Sales


Collaboration

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ING Direct uses Social Media to launch a new chequing account

Case StudyCase Study

Challenge:

Launch ING’s new THRiVE Chequing b d b kaccount on YouTube and Facebook.

Action:

ING Direct’s “THRiVEtastic heros” took to the streets to spend money

People in Toronto, Vancouver, and Calgary were asked about the THRiVE account - interviews were posted on YouTube

Results:

Total cost of THRiVE social media launch was less than one full-page print for over 5,000,000 impressionsimpressionsTHRiVE Twitter campaign trended higher than Charlie Sheen


Warner Bros. innovates with the social theatre


Warner Bros. innovates with the social theatre

Challenge:

W B d d t i t th i Warner Bros. needed to innovate their delivery mechanism

Approach:

http://www.santanderconsumerusa.com/dealers/dealer_partner.aspx

The company became the first to allowcustomers to rent movies on Facebook.

Results:

Since its launch, over 100,000 users have engaged with the app. That represents a potential revenue of $300,000.

Source: Source: http://www.insidefacebook.com/2011/03/28/warner-bros-rent-films/


Eventbrite profits from sharing made easy

Case Study Case Study

p f f g y

Challenge:

E b i h b i k l i Eventbrite sought to boost ticket sales using social media

Approach:

Eventbrite allows users to create a customized

http://www.santanderconsumerusa.com/dealers/dealer_partner.aspx

Eventbrite allows users to create a customized event and let attendees register or buy tickets online. Attendees can spread the word through one click integration with Facebook, Twitter and other social media platforms.

Results:

To date, over 35M tickets have been sold.

S l d t h h i i l di Sales data shows -sharing on social media increases revenue.

Source:http://blog.eventbrite.com/social-commerce


Lenovo reduces customer service costs with social media

Case Study Case Study

Challenge:

Lenovo noticed that customers were discussing its products in third-party forums and wanted to better control and participate in the conversation.

Approach:

The company launched a peer-to-peer support community.

Results:

Lenovo experienced 20% reduction in laptop call rates .

Customer service agents increase productivity by referring callers to existing post on the support community.


The beach boys crowdsource their next music video


Background: l/ l d h l d ll

The beach boys crowdsource their next music video

Capitol/EMI compiled the unreleased collection, ‘The SMiLE Sessions,’ for worldwide release this year. Capitol has turned to the online community to source music videos .

Action: Fans submit written concepts for videos for the

songs “Good Vibrations” and “Heroes and Villains” online

Fans submit music videos based on those conceptsp

$10,000 in prizes have been made available for winners in both phases of the contest.

Results:Contest wraps on September 15 – stay tuned for Contest wraps on September 15 stay tuned for

results


For a complete view of ROI for Social Media, set For a complete view of ROI for Social Media, set targets for more than pure financial measures

Financial Returns

Brand EquityReturns Equity

Costs and Benefits need to

be calculated

Risk Digital

be calculated across multiple priority areas

Risk Management

DigitalAssets


As Social Media strategy evolves, valued customer relationships grow stronger

Exchange

• Co-creation of products• Social commerce

EngageVa

lue

Enhance

• Channel integration for single view of customer experience

Explore

• Build a presence and drive trafficon Social Media platforms

• Invest in social technologies• Identify and engage with key influencers and

niche communitiesExplore

ROI

• Monitor and analyze• Conduct a readiness assessment• Create Enterprise strategy - Pilot ,

measure and learn

niche communities


Effort

ROI

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Social media can lead to disaster if used incorrectly


f y


“Surprise risks with recommending, following “Mixed personal and g, g

or “like” functions” “Viruses and malware

introduced through social media”

public domain” business use in the

public domain”

“Unclear content rights

“Regulatory, legal challenges and data

“Unclear content rights on social media sites”

retention needs”

“Increased customer “User-generated content


service expectations”outside the firewall”

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Participation is no longer optional so learn how to p g pbalance your risks

Tackle the challenges Tackle the challenges by:

• Building enterprise-level t t i d li i

Lack of Control

Complexity

strategies and policies• Choosing high-impact,

low-risk initiatives and measuring them

Real-time impact

measuring them• Using the basic tenets of

the social channels• Experimenting and

Informed policy

Strategy Experimenting and learning

Strategy

Response planning

Social Media: User generated content

U G d C L l IUser Generated Content: Legal Issues

Jessica FingerhutC l B k & Bl k ll LLPCassels Brock & Blackwell LLP


AgendaAgenda

1. User Generated Content (“UGC”) – Facts & Figures 2. UGC & Copyright 2. UGC & Copyright 3. UGC & Defamation 4. UGC & Privacy 4 y5. UGC & Advertising6. Practical Strategies to Minimize UGC-Related Legal g g

Risks


User Generated Content (“UGC”) – Facts & FiguresUser Generated Content ( UGC ) Facts & Figures

UGC found on many platforms:

Bl l• Blogs – slaw.ca

• Micro-blogs –Micro blogs

• User reviews – amazon.com

• Social networking sites

• File-sharing sites


• Wikis

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• Blogs: >169 000 000 Blogs: >169,000,000

• YouTube: >3 billion views per day

>48 hours of video uploaded every minute!

• Facebook: >750 million active users

> 30 billion pieces of content shared each month

i illi d • Twitter: > 55 million tweets sent per day

• Wikipedia: > 18 million entries in 279 languages



• UGC used by businesses in advertising campaigns

• e.g. IKEA – asked consumers to “tag” photos of IKEA showroom on Facebook to win free products link posted to thousands of Facebook users’ profile pages

• e.g. Quiznos’ online contest – consumers create and post homemade commercials

• UGC used by businesses for damage control

• e.g. Domino’s Pizza – video apology posted on YouTube g p gy p

• UGC used by businesses to increase consumer loyalty


• e.g. corporate blogs

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UGC & Copyright IssuesUGC & Copyright Issues

Are companies liable for infringing material posted to their sites by third parties?third parties?

Canada The law is uncertain

• SOCAN case: ISPs acting merely as “conduit” not liable for copyright infringement

Q: Are website operators ISPs?

• Bill C-32 (died on order paper):

• Limited liability for network service providers

• “notice and notice” regime

Q: Does this apply to website operators?


Q: What will be in the next Copyright Bill?

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UGC & Copyright IssuesUGC & Copyright Issues

Are companies liable for infringing material posted to their sites by third parties?p

United States Website operators are shielded from liability

Digital Millennium Copyright Act Digital Millennium Copyright Act Digital Millennium Copyright Act Digital Millennium Copyright Act

• “Safe harbour” provisions protect website operators from liability for infringing content uploaded to their sites

• Website operators must not have knowledge of infringing content; must remove material upon obtaining such knowledge; “notice and takedown” regime

• In the courts:

•• Io v. VeohIo v. Veoh

•• UMG Recordings v. VeohUMG Recordings v. Veoh


•• Viacom v. YouTubeViacom v. YouTube

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UGC & Defamation IssuesUGC & Defamation Issues

What constitutes publication?

Providing hyperlink to defamatory material (without words of invitation or encouragement) does not constitute “publication” (SCC reserved judgment from December 2010 hearing)

Are companies liable for the infringing material posted to their sites by third parties?

Canada The law is uncertain

• Legislature and courts have yet to take a position

United States Website operators are shielded from liability

• Communications Decency Act: Immunity to website operators for defamatory content posted to their sites by third parties


Compelling Disclosure of Infringers’ IdentitiesCompelling Disclosure of Infringers Identities

Copyright Infringement: Test set out in BMG v. John Doe

1. Bona fide claim against alleged wrongdoer

2. ISP is connected or involved in the misconduct under dispute

3. ISP is the only practical source of the information

4. ISP must be reasonably compensated for costs arising out of compliance with disclosure order

5. Public interests in favour of disclosure outweigh privacy interests

Defamation: Test set out in Warman v Wilkins Fournier Defamation: Test set out in Warman v. Wilkins-Fournier

1. Alleged wrongdoer does not have a reasonable expectation of anonymity

2. Good faith & prima facie claim against alleged wrongdoer

3. Reasonable steps taken to identify anonymous party

4. Public interests favouring disclosure outweigh interests of freedom of expression and right to privacy


UGC & PrivacyUGC & Privacy

• Compliance with applicable federal and provincial privacy laws

- Personal Information Protection and Electronic Documents Act Personal Information Protection and Electronic Documents Act (“PIPEDA”)

- Office of the Privacy Commissioner of Canada and the US Federal Trade Commission Federal Trade Commission

• Workplace privacy

- Can employees be fired for online comments?

h• In the courts

- UGC posted on private Facebook page used as evidence


UGC & AdvertisingUGC & Advertising

• Compliance with applicable laws- Canadian Competition Act & US Lanham Act prohibit use of materially false or

misleading representations in commercial advertising

• Who is liable for infringing UGC in online contests?- Subway v. Quiznos – Quiznos asked consumers to submit homemade videos depicting

Quiznos’ sandwiches as superior to Subway’s Subway sued Quiznos case settled

• Astroturfing

- Where a company’s employees pose as independent consumers to post positive reviews & commentary to websites about their company

- e.g. Lifestyle Lift: cosmetic surgery company engaged in astroturfing

l il “ id i i b l d d d h d


• Internal email: “Friday is going to be a slow day – I need you to devote the day to doing more postings on the web as a satisfied client”

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Practical Strategies to Minimize Risks Associated Practical Strategies to Minimize Risks Associated with UGC

Tips for Companies Regarding their Websites Tips for Companies Regarding their Websites

1. Monitor website

2. Ensure effective website terms & conditions of use

3. Ensure effective privacy policy

4. Establish procedures for UGC-related complaints (i.e. takedown policy)policy)


Practical Strategies to Minimize Risks Associated Practical Strategies to Minimize Risks Associated with UGC

Tips for UGC Creators Tips for UGC Creators

1. Review website terms and conditions of use

2. Review website privacy policy

3. Ensure UGC does not violate third parties’ rights or result in false advertising

Tips for Rights Holders

1. Monitor UGC websites for copyright infringement & defamation

2. Send notice to website operator requesting removal

3. Consider licensing opportunities with UGC sites


Thank you! Thank you!

Debbie Dimoff 416. [email protected]

Naqaash Pirani 416 .687.8012 [email protected]@ p q p @ p

Jessica Fingerhut416 .860.6456 jfingerhut@casselsbrock [email protected]


PricewaterhouseCoopers and Cassels Brock & Blackwell LLP publications used as sources have been prepared for general guidance on matters of interest only, and do not constitute professional advice. You should not act upon the information

i d i h bli i i h b i i ifi f i l d icontained in these publications without obtaining specific professional advice. PricewaterhouseCoopers and Cassels Brock & Blackwell LLP give no representation or warranty (express or implied) as to the accuracy or completeness of the information contained in these publications, and, to the extent permitted by law, PricewaterhouseCoopers LLP, Cassels Brock & Blackwell LLP, each of their members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in reliance care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in these publications or for any decision based on it.

© 2010 PricewaterhouseCoopers LLP or 2011 Cassels Brock & Blackwell LLP. All rights reserved. “PricewaterhouseCoopers” refers to PricewaterhouseCoopers LLP. As the context requires "PricewaterhouseCoopers" may also refer to the network of As the context requires, PricewaterhouseCoopers may also refer to the network of member firms of PricewaterhouseCoopers International Limited, each of which is a separate legal entity. Each member firm is a separate legal entity and PricewaterhouseCoopers LLP does not act as agent of PwCIL or any other member firm nor can it control the exercise of another member firm's professional judgment or bind another member firm or PwCIL in any way.

Social Media and User Generated Content: Business Trends...

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