Social media law part one

What is social media law?

Many lawyers argue that there is no such thing. Other than specific legislation (like the Electronic Commerce Directive) the same laws of copyright, contract, defamation etc. apply to the Internet as in real life.

However, this depends on how you view social media. Is it simply a development of Internet technology? Or is it a paradigm shift, a completely new type of interaction which will eventually drive the evolution of a body of "social media law"?

I'm not saying which side I fall on quite yet, but this is the first of a series of posts in which I am going to look at how the law is adapting to social media.

Rather than writing about abstract theories, I will be looking at the ways my day to day practice is changing to incorporate social media and Web 2.0. In the last post I will round up with my views on how the law is likely to develop (and maybe even answer the paradigm shift question).

To start with, I am looking at something fairly simple: what I call the "social network clause".

This could be used in all kinds of commercial agreements, but a good example is franchise agreements.

Take a situation where you operate a chain of restaurants under the Taco Cottage brand and you want to expand into different cities by granting franchises to new operators.

As well as the usual provisions in your franchise agreement, it might be sensible to include a "social network clause" to set out how your franchisees are allowed (or encouraged!) to use social media to promote their Taco Cottage franchise businesses. This  will be different in each case, but some basic things to think about are:-

• Is the franchisee entitled to create and operate Twitter accounts, Facebook pages etc. using the franchise business name? Are you happy to see Taco Cottage Wolverhampton and Taco Cottage Shrewsbury on Twitter or do you want Twitter users to engage with your own @TacoCottage account?
• Alternatively, should franchisees be obliged to use social media to promote their franchise business? If so, should they be required to feed back details of any successful initiatives to the franchisor for use by other franchisees?
• Who will "own" these accounts and how will copyright in the updates and content provided be dealt with? (the Law Donut blog has an interesting post on the implications of this for employers, but similar issues apply in this kind of situation).
• What social media policies should franchisees have in place for their employees?
• What happens if the franchise is terminated (or sold)? Is there a provision for the social networking accounts to be transferred to a new operator or owner? (By the way, there are real practical issues with this if the login details are held by a franchisee... maybe a service like Hootsuite which allows team collaboration on your Twitter account, but under your control, would be useful).

Franchises are an obvious example, but the concept is just as relevant to dealerships and distributorships, operators of concessions in shopping malls and any other agreement where one party is promoting a business using elements of the other party's intellectual property rights and goodwill.

I have incorporated something like this into a number of contracts recently and I would suggest it to any client entering into this type of agreement.

Of course, if you are the client, and you are having this kind of agreement drafted, then ask your lawyer about including a suitable clause... if they look at you blankly then feel free to point them in the direction of this blog!

Coming up next time around:- social media in mergers and acquisitions.

Comments

[Melanie Hatton]

My view is that social media is certainly an activity that requires lawyers to take a particular and considered approach to manage the risks and exploit the benefits which it presents both for their clients and for themselves. So, yes, I can see a place on the bookshelf (or should that be the e-book) for Social Media Law.

Having said that, I think its part of a wider awareness and skill-set that a lawyer should seek to practice as part of Web 2.0 or digital/internet law. Your example of a franchise agreement is a case in point - these days, the IPR licence which is part of the franchise agreement would need to deal with the rights of the franchisee to bid on "Taco Cottage" as a keyword in its digital marketing campaign (something which just wouldn't have been considered 10 years ago).

The digital environment brings with it a whole new set of behaviours and expectations which commercial agreements need to manage.

I'm looking forward to reading the rest of your posts in this series.

[Malcolm Burrows]

In Australia we are already using emails as an address for notices. How long will it be before vality URL's on social networking sites can be used for addresses for service?

Social Networking Clauses span a variety of business issues and in my experience they are largely being overlooked. Other areas of particular concern include restraint of trade provisions in employment and for business sales.

Interesing post

[Peninsulawyer]

Malcolm - I don't know if you followed this, but the High Court in the UK actually granted an order allowing service of an injunction via Twitter:- http://www.independent.co.uk/life-style/gadgets-and-tech/news/blog-served-with-injunction--via-twitter-1796091.html

The details are a little hazy as to how is was actually carried out, but presumably there is no reason why any social networking service couldn't be used in this way in appropriate circumstances.