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Franchise Bulletin: Social media – legal top tips for marketing on social platforms (Part 2)

Social media can be a great way to engage with customers. But with  great exposure comes great responsibility. Part one of our guide to social media marketing focused on intellectual property issues. Part two takes a look at some advertising and reputational issues. Here’s what you need to know…

Part 2: advertising and reputational issues

The normal advertising regulations apply

The Advertising Standards Authority has a remit to investigate and rule on complaints made about marketing communications online, including on social platforms.

Ads must not be misleading or offensive and should enable consumers to make an informed decision about the products or services being promoted.

The character limits imposed on certain platforms can add to the challenge, so you need to think about what type of ad works well and remains compliant on different platforms.  Twitter may not be the best place for a complex price comparison ad, but it is perfect for sharing images of your goods, conveying your core messages and running simple promotions.

Paid-for endorsements: celebrities, bloggers & vloggers

If you pay a third party (e.g. a celebrity, media outlet or popular blogger) to post on social media and promote your services, you need to ensure that they make it clear that the post is a marketing communication.

Use the hashtags #ad or #spon to keep things clear.

Care needs to be taken with video content on platforms like YouTube too. The ASA very recently upheld a complaint that a video promoting Max Factor make-up by a popular vlogger was misleading because it was not clear that the content was an advertisement, even though the words “sponsored by” and “brought to you by” were used in the video. Ideally consumers should be told about the commercial nature of content before they elect to engage with it.

Moreover, the ASA considered that the words used did not make it clear that the content was in fact an advertisement for Max Factor, as opposed to impartial editorial which was merely financially sponsored by the brand’s owners. This would seem to cut across the ASA’s own recommendation regarding the #spon hashtag on Twitter. What is clear is that advertisers should use different measures on different social media platforms (each with their own particular functionalities and idiosyncrasies) to ensure that marketing communications are identifiable as such.

The internet is an echo chamber

Be careful what you say out there If you engage with customers on social platforms, remember that the only loser in public spats with customers is your reputation. While criticism of your goods or services can be uncomfortable, it is a fact of life and you need a policy for engaging and dealing with it in a professional manner. Don’t be a player in one of those PR disasters that goes viral once in a while.

The fact that social media posts are published for all to see can also give rise to legal issues, particularly with regard to defamation.  That said, there may not be a viable legal remedy for you as a business, even if you feel a customer’s comments are unfair or untrue.

Unless your business can prove that the customer’s comments were  likely to cause serious financial loss (in addition to being untrue), a defamation claim against a disgruntled and vocal customer is unlikely to succeed. And suing customers is probably not high your board’s agenda in any event.

On the other hand, if your social team were to make derogatory statements on your social media accounts about customers (and it does happen), then those customers may have grounds to bring a defamation claim against your business (and would have a lower threshold for proving that they had been seriously harmed).  Whether or not such individuals have the resources to bring such a claim is another question, but make sure it is never an issue – the PR fallout from such public spats is arguably as bad as, or worse than, the legal ramifications.

Key Message

Ensure your social team has a code of conduct and give them the skills and training they need to avoid trouble.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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