Think before you type – Social media can land you in Hot Water!
by Sharon Givoni
A recent legal stoush between two well-known Australian swimwear labels over photographs and comments posted on Facebook serves as an important reminder to people in business of the dangers of using social media when making comments about other businesses. What happened in the case?
Leah Madden is Principal of White Sands. She discovered what she thought to be a “rip off” of some items in her 2009 “Shipwrecked” swimwear collection. She posted an album on her Facebook page entitled “The most sincere form of flattery?”. The postings featured several side-by-side comparison shots of models wearing White Sands and Seafolly swimwear respectively and below the images Madden inserted descriptions such as: “White Sands 2009-Seafolly 2010”. She embellished the images with comments such as:
- “Seriously, almost an entire line-line ripoff of my Shipwrecked collection.”
- “I know, the buyer from ‘sunburn’ (who, as it turns out, works for seafolly) Came to my suite at RAFW and photographed every one of these styles.”
- “Ripping off is always going to happen, but sending in a dummy ‘buyer’ to get photos is super sneaky!”
The Facebook statements were read by many people, and elicited quite a response. People said:
- “Nasty! Shame on ’em! Won’t be buying Seafolly. WHITESANDS all the way. X”
- “Seafolly own everything! Sunburn, miraclesuit and gottex and they used to own jets but sold it recently! And unfortunately they do rip off everyone, they have copied a design 2 chillies has been doing for years! A little frilly triangle, its so bad!”
- “Disgusting! How people look at themselves in the mirror is beyond me.”
Madden then sent emails to media outlets also using the same words “The most sincere form of flattery?” in the subject line of each email.
Responses from readers included
- “This sort of thing is happening ALL the time. Large corporations no longer have ‘designers’ but ‘product developers’ that source indie designs, copy and mass produce them.”
- “Yeah right Seafolly – you really expect us to believe this garbage?…”
What did Seafolly do? In response, Seafolly circulated a press release heavily denying the allegations of copying. It was able to show that it had already had the designs in the marketplace before White Sands. White Sands responded by stating that it had never specifically accused Seafolly of plagiarism.
However, from Seafolly’s perspective the allegation of copying was clearly implied. It needed to set the matter straight and it issued legal proceedings in the Federal Court of Australia. Seafolly alleged:
- Misleading and deceptive conduct (in relation to Madden’s emails to the press)
- Injurious falsehood (namely, that Madden’s comments and posts had caused damage to Seafolly’s reputation and thus economic loss) and
- Copyright infringement (as White Sands had reproduced Seafolly’s swimwear photos online without permission).
Madden argued that she had only expressed an “opinion” – not a statement of fact so it should have been alright. The judge disagreed. Madden also argued that she was not making the comments in “trade and commerce” so the misleading and deceptive provisions did not apply. Again, the judge disagreed as the setting was clearly in a competitive context. He found that Madden’s comments were “a serious assault on Seafolly’s business integrity”.
Seafolly’s CEO agreed (of course!). He commented that in “this day of internet, where things go viral” once things are released into the “public space, no amount of logical reasoning actually matters”. “…Once she put that up there, I was finished anyway… the damage had been done.”
Ultimately Seafolly succeeded in its arguments concerning misleading and deceptive conduct. White Sands was ordered by the court to pay Seafolly damages in the sum of $25,000 and Seafolly’s costs of the court application.
However, in reality, no-one really won. The public airing of their “catfight”, led to both companies attracting some level of negative publicity. One headline state: “Swimwear designer ‘malicious’ against rival” and, “Court slams small designer for falsely accusing bikini maker Seafolly of ripping her off.”
Tips for commenting in Social Media
- Think before you speak (or at least think before you type, especially when it comes to social media).
- Just because you do not expressly say something, if you imply it, that can be just as bad, legally speaking.
- Posting things on social media sites may be considered “in trade and commerce”, especially if you mention your competitors and could be deemed misleading.
Disclaimer – The contents of this article do not replace tailored legal advice
*Sharon Givoni is an intellectual property lawyer with 16 years and has clients across all industries.
If you are the owner or founder of an SME (Small and Medium Enterprise) or are the person responsible for sales or business development in any size organization then your reputation – your personal branding is paramount in your personal success and the success of your organization.
‘Brands are like people’ is an analogy often used to describe the companies they represent. Virgin is the brand built by Richard Branson and the two are hard to separate. Consumers buy into the personality of the founder and what it represents and promises.
In many cases however ‘brands are people’ – every celebrity is a brand, from Oprah to Dr.Phil, to rock stars and actors to sports people like Beckham.
Business brands take on or communicate the values of their founders. This is especially true for start-ups and new businesses, professional services firms where the names of the founding partners make up the brand names. Although this is not the best way to brand your services business this is still the dominant reality for many.
So the brands are designed and communicated by people. People, especially in services industry is who we all buy from! So it makes sense that ‘these people’ have an optimal representation of who they are and what makes them special in the place where it matters most, the place where positive perceptions are formed – online!
Your online identity and representation is made of your online assets:
- Blog / Website
- YouTube Channel, etc
The most important of these in the SME (B2B & Professional Services) is LinkedIn, and we’ll cover this next.
You are not reading the review about the latest marvel of German engineering as it glides through some secret track testing location in Stuttgart! I’m talking about utilising points of view to propel your business into top gear with better content strategy online and more results driven copywriting for your marketing collateral, blog, website, social media, etc.
1st Person Narrative:
The story is relayed by a narrator who is also a character within the story, so that the narrator reveals the plot by referring to this viewpoint character as “I” (or, when plural, “we”).
This point of view needs to be used very sparingly in marketing, as it takes the reader or the message recipient’s focus away from themselves and we all know that station “W.I.F.M – What’s In It For Me” is the only one that the audience listens to.
2nd Person Narrative:
Probably the rarest mode in literature (though quite common in song lyrics) is the second-person narrative mode, in which the narrator refers to one of the characters as “you”, therefore making the audience member feel as if he or she is a character within the story. Every good advertisement, PR story, blog entry, sales letter, email, etc takes us on a journey, it tells a story, no matter how short it is, it is interesting enough to engage us.
Second person narrative is the most useful and proven method of engaging with your audience and influencing them through the written word positively to: buy your product, perceive you differently, take action, vote, etc
Unfortunately most authors of SME marketing materials, do not utilise copywriting in a scientific manner and do not treat it as multiplied salesmanship!
The “we’s” on the average website outnumber the “you’s” at a ratio of at least 2 : 1, and show, in a subconscious way, that an internal focus, rather than being customer focused.
On the other hand if you look at work by customer focused marketers, you will find their copywriting utilising “you v we” ratios of closer to 3 : 1 in favour of “you”.
3rd Person Narrative:
Third-person narration provides the greatest flexibility to the author and thus is the most commonly used narrative mode in literature. In the third-person narrative mode, each and every character is referred to by the narrator as “he”, “she”, “it”, or “they”, but never as “I” or “we” (first-person), or “you” (second-person). In third-person narrative, it is necessary that the narrator be merely an unspecified entity or uninvolved person that conveys the story, but not a character of any kind within the story being told.
This is the preferred point of view of the bigger ‘corporate’ organisations. Unfortunately, in many cases, the customer or prospect walks away from the experience with this big brand feeling as if they are a “number and not a member!”
Third person is however useful when you need to:
– convey a more authoritative tone
– sound more objective than first or second person writing.
Although third person is the language we’re used to reading in our daily media, third person writing is also more distant, which is a disadvantage if you want to engage your reader.
As we all know, marketing success comes from adopting a customer centric point of view; what we all sometimes forget is that it is important to communicate this point of view, after all if you don’t illustrate this to your customers, they simply won’t know. Perception is Reality.
Are you connecting with your customers? Call the Marketing Network and see how we can improve the perceptions your customers and prospects have about your business.
There are 3 main challenges associated with hiring a marketing consultant:
- Understanding exactly what your company needs
- Developing a job description to the right level of detail
- Finding and selecting the right person for the job.
How do you know what type of person, skills, experience is best suited to meeting your business objectives, especially if you are not a marketing consultant yourself?!
Even if you are not new to the process and have had someone in the same marketing role previously doesn’t mean you were maximizing the use of your most precious human resources. Many small medium enterprises severely compromise results when searching for a Marketing Manager. The main reason for this is that the nature of small and medium enterprise means that you are looking for a marketing manager who has the ability to:
Handle all the complex Strategic issues of the company:
- Market Research
- Product Development
- Market Feasibility Studies
- Brand Positioning
- Creative Strategy
- Marketing Plans
- Marketing Audits
- Communication Audits
- Media Planning
Be able to develop all of the Creative (Copywriting and Design):
- Corporate Identity Development from Collateral to Packaging and POS
- Direct Marketing: Brochures, Postcards, Letters,
- Online Marketing: Websites, Blogs, Email Marketing, Search
Marketing, Online Advertising
- Advertising in all the different mass and niche media channels
and who is also prepared to be “hands-on” and perform all the day-to- day implementation Project Management and Administrative Tasks, such as:
- Database data entry
- List generation for email, direct mail and telemarketing
- Above or below the line campaign management
- Event management and co-ordination
- Updating all of the marketing collateral and assets (website, sales brochures, etc)
- Organising and co-ordinating events
- Dealing with suppliers (e.g.: Media sellers, printers, etc)
This is just not realistic, especially as this mythical creature doesn’t exist! Undoubtedly, you will get plenty of resumes that say otherwise and applicants who try to convince you that they are perfect for your company. But let’s look at the facts and examine why this is not the case at least in 99 times out of a 100.
To find true strategic, creative and administrative skills in one person with an adequate level of expertise, you will be looking for someone with at least 10 years of experience AND:
- Throughout the career of this hypothetical individual, they would have had to experience and learn marketing disciplines, that is work in the marketing departments of big multinational brands or in advertising agencies that handle those brands
- The chances of someone today being exposed to and truly experienced in marketing strategy and creative, which were always separated in any case are very slim. Furthermore the age of the “generalist” has long disappeared, circa Y2K bug and marketing is becoming more and more segmented on a daily basis into specific and narrow disciplines and it’s simply not possible to be an expert in every one of them.
- Finally, not only is it hard to recruit such a person, because let’s face it, assuming this illusive intelligent creature, most likely a woman of course, decides to go back to work after having children, either out of boredom or for economic necessity, she will be tempted by the pace, variety, much higher pay and prestige of a “blue chip” corporate than your small business. She will not only be difficult to find and recruit but to also to retain, because as an experienced Marketing Manager she will quickly become bored with the routine administrative work which is likely to be part and parcel of your small enterprise.
Any Marketing Manager who accepts that type of role is at risk of being both under-utilised and under-stimulated. It doesn’t make sense for the company either. Retention and productivity issues aside, the company is at risk of paying more in salaries than they need to.
Another common approach is to hire the required Marketing Manager full-time and employ junior marketing or clerical staff to assist them. But employing the senior, more costly staff-member on a full-time basis is not the most cost-effective solution.
What these companies really need is a top calibre strategic Marketing Manager supported by someone less senior to handle their day-to- day marketing tasks. An increasingly popular solution is to engage the Marketing Manager part-time to provide the strategic direction
and employ a junior marketer to undertake the daily “clerical tasks”. Both the strategic and administrative needs of the company are then undertaken by the appropriate level of staff and the company saves money! In addition, the more experienced Marketing Manager provides mentoring and training to the junior marketer – a real benefit in a small organisation.
Remember the old adage “if you keep doing what you have always done, you will keep getting what you have always got”. How do you know whether the person was the ideal person for the job? For example, what were their key performance indicators?
- Did they improve your company’s lead generation by lowering your Cost per Lead?
- Did they improve your company’s Sales Conversion Rate?
Producing a new brochure, advertisement or website may be deliverables; however it is their effect on your bottom line that is most important. There are also a number of principles by which you can scientifically assess the future effectiveness or quality of these marketing tools, before they begin to be used and hence allow you to measure their true effectiveness.
Consider whether your business could benefit from a part-time Marketing Manager or outsourcing your strategic and creative marketing and acquiring the appropriate marketing support staff. This could ensure that you have the right level of expertise and that you keep costs to a minimum.
The above principle also works with more junior staff. 2 companies (now clients) were looking for a Part Time Marketing Assistant. Luckily for them they were open to trialling a different approach to their challenge. After the strategic marketing planning work was completed (in less than 4 weeks and under $10,000!) and a Marketing Action Plan developed, both companies ended up using their existing administrative staff to handle all of the mundane and routine tasks. Instead of hiring a marketing assistant, one company employed a person on the production side of their business and the other employed a sales person, both resources that they badly needed.
The best marketing assistant would not have been able to deliver the strategic marketing advice, would have been bored by the mundane administrative work and was likely to have lodged a stress claim if they had to do some serious business development – sales!
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People are emotional beings.
They feel first, think second.
Feelings affect rational thought.
Most purchase decisions are emotional, justified with rational thought later.
In 2002 Daniel Kahneman of Princeton was awarded the Nobel Prize for Economics. His work, for the first time, recognized that it’s the power of emotions and a person’s psychological makeup that are the key determining factors in buying behaviour.