1. 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
Partner, Sidley Austin, Brussels and London

2. SIDLEY AUSTIN LLP

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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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