6 October 2016 Social media: do you have the right social media strategy that will impact your business’ growth? - Legal and Regulatory Issues William Long wlong@sidley.com Partner, Sidley Austin, Brussels and London

SIDLEY AUSTIN LLP

Key Legal Risks and Considerations Data privacy Does data privacy apply to social media? Game changer: new EU General Data Protection Regulation User-generated content When are you responsible for content provided by customers? Unfair trading Use of social media for sales and marketing must be “decent, honest and truthful” General liability Who is liable for social media? Who owns the content? Defamation - is what you are posting accurate? SIDLEY AUSTIN LLP

Data Privacy – Does it Apply to Social Media? Data privacy is a major concern for social media Under EU data privacy laws a company will be responsible for the use of personal data collected through social media Under the new EU General Data Protection Regulation there will be fines of up to 4% of annual worldwide turnover of the group for non-compliance Enhanced consent and transparency requirements Data security Right to be forgotten Restrictions on profiling What should you do? Review online privacy policy – be clear and transparent Review existing cookies notices Review consents obtained for marketing Information security should be a priority Profiling – can you use anonymised data? SIDLEY AUSTIN LLP

User-Generated Content – When are you Responsible? Liability for your business can arise from information posted by users – “user- generated content” Defamation Copyright infringement Breach of confidential information What should you do? Decide whether to moderate the content posted Have an acceptable use / social medial policy to minimize risk of defamatory or infringing comments being posted Implement a take-down policy for offending content SIDLEY AUSTIN LLP

Unfair Trading Use of social media for sales and marketing must be “decent, honest and truthful” General requirement not to mislead users / customers Avoid “astro-turfing” - it must be clear if an individual has been paid to promote products / services AND you must disclose your commercial intent For example, on Twitter any promotional tweets should be followed by, for example, #spon, #ad, #paid Viral marketing – that is increasing brand awareness through self-replicating viral processes It must be made clear that this is publicity and on whose behalf the publicity is made It must not be misleading to the average user Tell a friend schemes are prohibited in some EU countries (e.g. Spain) Prize draws and competitions Always have clear terms and conditions with a link to full terms Ensure compliance with applicable platform terms of use SIDLEY AUSTIN LLP

General Liability Before posting content online make sure you have all the necessary licenses and consents For example, you may need to obtain consents from customers to use their content What do the social media platform terms say? The control and ownership afforded to content by each platform differs Periodically review the terms of online platforms to ensure activities are compliant Is what you are posting accurate? Avoid posting potentially defamatory content Make sure your content complies with marketing rules SIDLEY AUSTIN LLP

Checklist for Legal and Regulatory Issues Maintain list of websites / pages under “management or responsibility” Develop a social media policy and play book Ensure that a social media project owner is in place Ensure early consultation with the legal and compliance teams before engaging in social media programmes Ensure compliance with new EU General Data Protection Regulation Decide whether or not to actively moderate content Ensure the use of appropriate disclaimers Ensure that employees are sufficiently trained and understand social media policies and practices Ensure that third party terms and conditions are reviewed periodically Establish appropriate consents, terms and conditions, privacy policies and take down procedures Ensure that systems are in place to monitor developments in the regulatory field SIDLEY AUSTIN LLP

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