Legal Briefing

How that tweet could end up costing your company more than you’ve budgeted for

The In-House Lawyer Logo

Technology, Media and Telecoms | 01 June 2012

There is nothing new about the fact that how an employee behaves can have a serious impact on a company’s reputation; what has changed is that a company’s reputation can now be damaged via a variety of different social media sites as well as through traditional channels. As social networking interaction continues to grow, the price of this global phenomenon is becoming all too apparent. Around 14 million Britons are believed to regularly use social networking sites, with this figure expected to more than double over the next ten years.

The internet was once merely a source of information and communication, but it has now become a place where people become exhibitionists as they share opinions and comments with virtual strangers around the world from the privacy of their own home. However, the impersonal nature of typing on a computer often causes people to let their guard down and post controversial or private information about themselves, which is how a seemingly innocent post from a user’s bedroom can be picked up by the media and then once the spotlight is shone on the individual poster by the press, their employer can be thrust into the mix. John Lewis was recently dragged into the press when one of its employees was jailed after falsely claiming that she had been raped when she was caught cheating on her boyfriend with a stranger, who she had met on a ‘no strings attached’ website. The employee was sentenced to 14 months in jail and John Lewis, as her employer, was mentioned in every press article about the case.

TWITTER ENDORSEMENTS

Social media is now seen as a vital tool in promoting a company’s brand or product. It has become commonplace for companies to pay celebrities to endorse products on sites like Twitter, where tweets will instantly connect with potentially millions of followers. It has been estimated that celebrities can earn as much as $50,000 a month promoting products on social networking sites. However, companies need to be aware of the rules and regulations in place regarding this growing practice.

In March 2012, the Advertising Standards Agency (ASA) made its first ruling regarding marketing on Twitter. The case involved a campaign by Mars Chocolate UK and adverts for their Snickers bars that featured the model Katie Price and the footballer Rio Ferdinand. Both campaigns involved a series of four tweets sent by the celebrity:

Katie Price’s tweets included: ‘Great news about China’s latest GDP figures!!’ ‘Chinese leaders are now likely to loosen monetary policy to stimulate growth, Yay!’… and finally, ‘You’re not you when you’re hungry @snickersUk #hungry #spon…’ The final tweet also included a picture of Katie Price holding a Snickers bar.1

Rio Ferdinand’s tweets included: ‘Really getting into the knitting!!! Helps me relax after high-pressure world of the Premiership’, ‘Can’t wait 2 get home from training and finish that cardigan’… and finally ‘You’re not you when you’re hungry @snickersUk #hungry #spon…’ The final tweet also included a picture of Rio Ferdinand holding a Snickers bar.f2

The ASA received complaints that challenged whether both campaigns were obviously identifiable as marketing communications.

The ASA ruled that all of the tweets should be considered as advertising, and ruled that consumers were not likely to be misled as the final tweet was clearly highlighted as an advertising campaign.

The Office of Fair Trading (OFT) has also cracked down on Twitter users who fail to claim that they are endorsing products in their tweets. In January 2011 they brought a case against a PR firm that was found to be paying users to promote their clients’ products. The OFT found that this was ‘deceptive’ and users must be informed if a tweet is an endorsement.

In the US it has been reported that celebrities like Kim Kardashian can earn up to $10,000 for sending a single tweet endorsing a product.3 But the US Federal Trade Commission states that a promotional tweet must contain the words ‘spon’ or ‘ad’. There is currently no such requirement in the UK, but in the Mars case above their main defence was that ‘#spon’ was widely recognised by Twitter users as indicating sponsored content. Further, Mars argued they had received advice from an industry body before creating the campaign, which had indicated that it was an accepted practice. Therefore, it could be regarded that these cases have established a precedent that all promotional Twitter campaigns must contain a recognised ‘sponsored’ symbol if they are to avoid falling foul of the ASA or OFT guidelines. In relation to the Katie Price and Rio Ferdinand tweets the OFT told Sky News Online that any ‘advertising and marketing practices that do not disclose they include paid-for promotions are deceptive under fair trading laws.’

TRANSPARENT TWEETING

The message is that transparency is key in this field. Celebrities, companies and brands invest a great deal of time and money in developing their reputation and the public and watchdogs are not going to look kindly on tweets that appear to pull the wool over their eyes. So ensure that any promotional tweets carry a recognised tag as the negative publicity that will result from an ASA or OFT finding against your company will surely undermine any spike that the initial tweet will have generated.

INTERNET TROLLS

The term ‘troll’ no longer refers to villains in children’s fairy tales; they are becoming an increasing problem in today’s social media age.

The modern day definition of an internet troll is someone who posts inflammatory, extraneous, or off-topic messages online, such as in forums, chat rooms, blogs or other social media sites with the primary intent of provoking readers into an emotional response or otherwise causing controversy. Their activities often come to light around high-profile emotional or traumatic events. Trolls’ activities are frequently highly offensive and upsetting, which is not helped by the mainstream media further publicising the troll’s actions.

Some recent examples include:

  • The University of Swansea student Liam Stacey who was jailed for 56 days in March this year after pleading guilty to racially aggravated harassment after tweeting a barrage of racist and obscene comments about the footballer Fabrice Muamba while he was fighting for his life on a football pitch. He later claimed that he had been hacked and the tweets had been posted by someone else but when there was no evidence of this he was forced to hold his hands up and admit his guilt. Mr Stacey has since been removed from his university course and with the addition of a prison sentence the potential impact that a user’s interaction online can have is all too apparent.
  • Newcastle University were dragged into another recent internet troll case when Joshua Cryer, a law student at the university, bombarded the ex-footballer and now pundit Stan Collymore with racist abuse in an attempt to ‘snare a celebrity’. Like Mr Stacey, he too claimed initially he had been hacked but later admitted a charge brought under s27 of the Communications Act of sending ‘grossly offensive messages.’ Mr Cryer was ordered to complete a two-year community order with 240 hours unpaid work and to pay £150 in costs to the court. The Crown Prosecution Service North East warned others about posting racist or offensive remarks online as they advised that ‘when a person makes such comments digitally, they effectively hand police and prosecutors much of the evidence needed to build a robust case against them.’
  • The Southampton striker Billy Sharp was targeted by an internet troll in February of this year after the tragic death of his new-born son. The tweets were written in the style of terrace chants and were highly offensive. The police are investigating the abuse Mr Sharp was subjected to but the cowardly nature of posting anonymous comments online can make it hard for the individual responsible to be tracked down.

As can be seen from the recent examples, trolls may be in breach of a number of laws including the Malicious Communications Act, Communications Act, Protection from Harassment Act and Public Order Acts. Sending grossly offensive, indecent, obscene, racist or menacing messages is likely to constitute at least one criminal offence, irrespective of whether the person targeted actually reads the message. Persistent messaging can constitute harassment, which would entitle the victim to obtain an injunction.

Internet trolls are hard to stop but hopefully the well-publicised punishments that recent trolls have received will act as a deterrent to some. However, unfortunately this is a practice that is unlikely to stop entirely and, as can be seen by the above examples, companies and organisations can quite easily be dragged into the mix. They may be forced to take action against individuals, which can, in turn, generate unwanted press attention.

THE COST OF A DEFAMATORY TWEET

The damages awarded in one recent High Court defamation case over a tweet equated to £3,750 per word. The case involved the former New Zealand cricketer Chris Cairns and the chairman of the Indian Premier League (IPL) Lalit Modi.

In January 2010 Mr Modi tweeted that Mr Cairns had been removed from the IPL auction list (players available to play in the league) ‘due to his past record of match fixing’. The court had to decide whether Mr Cairns was a match fixer or, alternatively, whether at the material time there were strong grounds for suspicion that he was a match fixer. Mr Modi pleaded justification.

Mr Justice Bean found ‘there had been a failure to provide any reliable evidence that Mr Cairns was involved in match fixing’. The allegation was so damaging to Mr Cairns that the judge felt there was no question that it was defamatory. Even though few people in the UK would have seen the tweet, the judge noted that in the online world ‘the position tends to spread far more rapidly’. He added:

‘It was obvious that an allegation that a professional cricketer was a match fixer went to the core of attributes of his personality and if true, entirely destroyed his reputation for integrity. The allegation had not been as serious as terrorism or sexual offences for example, but it was otherwise as serious an allegation as anyone could make against a professional sportsman’.4

The total damages awarded to Mr Cairns were £90,000, which equates to £3,750 per word – there were also the legal costs to be paid by the losing party, which are in the region of £1m.

In 2011 Courtney Love was forced to settle a defamation lawsuit in the United States for $430,000 after tweeting about the designer Dawn Simorangkir. The singer had posted a number of allegations about the designer on Twitter, including that she was a thief and a prostitute, and was advised to settle the dispute as the cost of litigating the case would have far exceeded the settlement figure.

These again are clear examples of the financial implications that a few words posted online in the heat of the moment can prove costly for an individual or company in the long term. In the past, one’s grievances would be settled in a less public forum. However, as technology has developed people are putting these thoughts and feelings in writing; be it a text message, e-mail, tweet, Facebook post etc. These comments are published permanently and often broadcast all over the world, where the impact upon companies can be devastating.

One needs to remember that the law is the same; regardless of whether comments are made in traditional hardcopy form, eg a newspaper article, or online in the form of a blog or comment piece. Posting potentially libellous comments online from what users perceive to be the safety of their own phone or computer exposes them to the same legal risks.

PREVENTION IS BETTER THAN CURE

The moral of the story is to educate employees on the dangers of social media and that any information they put into the public domain or make accessible to third parties can come back to haunt them. They should ask themselves whether this is something they would say to someone face to face, or would they be happy if their mother or boss were to read it. Employees should be reminded that the perceived anonymity and instant gratification of sharing opinions online often loosens your tongue, and if in doubt, don’t post it.

Employers should educate their employees about how their online digital footprint can impact upon their professional, as well as personal life. Employers of course often now check websites like Facebook and Twitter when interviewing candidates for jobs and they have been known to be used as evidence in disciplinary hearings.

THINK BEFORE YOU POST

Finally, all should be wary that the internet is like that friend we have who loves to gossip behind our backs. Anything you supply it within a few clicks can be copied and pasted around the world and your ability to control the situation is lost almost the second you press send.

By Joelle Rich, solicitor and Nick Sinclair, trainee, Schillings.

E-mail: joelle.rich@schillings.co.uk;

nick.sinclair@schillings.co.uk.

Notes

  1. http://www.asa.org.uk/ASA-action/Adjudications/2012/3/Mars-Chocolate-UK-Ltd/SHP_ADJ_185389.aspx.
  2. http://www.asa.org.uk/ASA-action/Adjudications/2012/3/Mars-Chocolate-UK-Ltd/SHP_ADJ_185389.aspx.
  3. Cairns v Modi [2012].