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Think BR: Social media matters

Being transparent on social media does not have to come at the expense of creativity, writes Philip Hughes, associate in the media, brands and technology department, Lewis Silkin LLP.

Philip Hughes: associate in the media, brands and technology department at Lewis Silkin LLP

Philip Hughes: associate in the media, brands and technology department at Lewis Silkin LLP

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As more and more clients ask us about the legal implications of social networking, it feels as though the social media landscape is shifting and reaching a turning point.

Brands seem to be spending more money than ever on social media, and they are often talking to an audience with an increasingly sophisticated understanding of the medium.

This has had a huge impact on how companies target audiences and has resulted in brands facing increasing difficulty in growing a fan base on Facebook or getting followers on Twitter.

When there was less commercial competition and consumers were possibly more naïve about the world of social media, collecting fans was not only easier, but it was also cheaper as organic growth occurred more naturally.

More than ever, brands are "buying" fans. Be this through more prominent engagement ads on Facebook, such as video or poll ads, or through competitions, buying fans seems easier than collecting them naturally through content or an interesting news story.

There are interesting commercial and legal implications with such an approach. 


Ensuring that competitions are run lawfully is a potential minefield. To start with, competitions and the relevant terms and conditions must be written in line with Facebook’s own promotion terms. 

In addition, the advertiser has to ensure that they protect themselves from the competition’s specific risks.

For example, vote rigging and fraudulent voting in online user-generated content (UGC) competitions is a major issue at the moment – whether or not they are run from or promoted by social media activity – as demonstrated by the recent ASA criticism of a Mercedes-Benz competition. 

Brands need to grapple with this issue at the outset of planning the promotion and when drafting legal terms and conditions.                 

A further issue faced by brands running competitions on Facebook is whether to target the competition globally or to make it territory specific. 

Social media is often used to bring smaller communities together, so at times a global competition may or may not be appropriate. 

In global competitions, brands face the legal challenge of ensuring legal compliance in every territory, as the rules regarding what is and is not allowed when running competitions or prize draws is incredibly diverse from country to country.

Some brands choose to minimise risks by running a promotion that is compliant with the most "risky" territory, but understandably don’t opt to spend money checking legal compliance in all countries.

Sponsored stories

Many advertisers are using sponsored stories to target specific sets of users. Such ads allow advertisers to pay to turn actions taken by Facebook users into promotional content.

So, a user may click a "like" button to show that they like a brand, and an ad then appears on their friends’ pages. 

The use of such advertising can increase the brand’s likes as well as their followers or fans, as they are seen as a trusted endorsement.

There are legal issues for brands to consider when using such adverts, including how to control where their ad is seen and what is said about it.

Take the example of an alcohol brand. According to the CAP Code, marketing communications for alcohol must not be directed at people under 18 through the selection of media or the context in which they appear, and people shown drinking or playing a significant role must neither be, nor seem to be, under 25.

If a 17- or 18-year-old has liked an alcohol brand's page, and a sponsored ad is shown to all of his teenage friends, has this ad been directed at those under 18? 

Further, even if the person who liked the brand or story is over 25, what happens if they choose a profile picture of themselves when they were a child?

Their image (or those of their friends appearing under the ad if they comment on it), may show someone under 25 (or who looks under 25) appearing in an alcohol ad, which breaches the UK’s self regulatory codes regulating the promotion of alcohol.

What does success look like?

For some time there has been an increasing habit, perhaps driven by economic difficulties, of companies measuring the success of social media campaigns purely by numbers, eg, how many fans did it create, how many likes, etc.

Scale is of course important in driving revenue and in part, brand awareness, but should the metrics for such activity be driven by a head count?

Once you have these followers, what do you say to them and why do you say it?

The answers may depend on who you ask and are no doubt sector, product and campaign specific.

Last year, Starcom MediaVest Group conducted a research study to "quantify the value of social media experiences from exposure through to purchase funnel actions".

Their starting point was that the level of involvement, rather than simply participation numbers, is crucial.

The key headline of the research seems to be that, "people who do more than just click on a branded social media site (eg, play a game, follow on Twitter) are twice as likely as those who just visited the site and did nothing else, to complete a purchase funnel action".

So it seems that creating likes and following up with further actions is important in driving a business result.

Brands that are simply hunting fans/followers and likes through paid-for display advertising and competitions may in the long term struggle to turn followers into a positive and relevant metric result – such followers are, it seems, less likely to change their brand preference or make enquiries.

Conversely some brands, who have built a large following through viral content and more immersive strategies, now face the difficult decision of whether or not to start "selling" to their base in order to monetise them, although arguably both approaches keep the brand front of mind by being in the consumer’s social media life.

According to Facebook COO Sheryl Sandberg, whenever fans of Coke are thirsty, "they’ll think of Coke, because Coke’s part of their life because it’s in their Facebook feed."

Whatever the approach, being transparent about the nature of a marketing communication being "marketing" is key from a legal perspective, especially on Twitter.

This doesn’t mean doing the obvious, or not being creative or ground breaking.

But it does mean that endorsed messages which don’t make the marketing intent clear are unlikely to be lawful.

In the long run, brands that engage and entertain consumers, while approaching them with respect, should thrive on social media. 

Philip Hughes, associate in the media, brands and technology department, Lewis Silkin LLP

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