Typing the word Molson into a Facebook search reveals more than just the official page of the Canadian brewing giant.
In fact more than 500 individual pages on the social media site feature Molson in the name. While some picture bottles of Molson Canadian and comments praising the iconic brew, there are others simply titled “Molson Canadian Sucks,” questioning why anyone would drink the beer. The “I am Canadian Rant,” which was a key part of the company’s marketing strategy a decade ago, still encourages more than 450 “friends” alone. In an age of it’s not who or what you know, but who and how many are following you, Molson is clearly one of the leaders in social media marketing — much of which is driven by beer drinkers themselves.
“The dialogue and the discussions about our brands are happening out there on social media tools and vehicles regardless of whether we are participating,” says Molson Coors Canada chief legal officer Kelly Brown. “So we definitely have it within our strategy to try and tap into those dialogues that are happening with our consumers, and to participate in them and gain consumer insights from social media.”
The company uses Molson’s community blog as a venue to promote both its beer brands and corporate brand. For example, the company often uses the blog to highlight its corporate social responsibility efforts. It also uses Twitter as an internal communications tool between employees, and externally to communicate to consumers. Molson also uses microblogging service Yammer internally.
Brown understands not all of the consumer-created sites may be considered positive, but says the company still sees them as an opportunity. “The phone’s ringing — you can choose to answer it or not answer it. We’re happy to see any kind of comments that our consumers have, because it gives us insight into what they are looking for in our brands.” To that end, the company’s communications professionals often reply to social media posts.
Being involved in as many social media projects as Molson is, the legal department is in full force managing its efforts. There are basic safeguards in place for social media efforts, and to note trends that may signal the next innovation poised to draw in millions of users. Brown points to a number of areas where the department is on the lookout for potential brand damage. It is quick to deal with anyone whose social media presence erroneously suggests they are acting on behalf of Molson. Efforts are also made to politely “correct the record” whenever inaccurate or potentially defamatory comments about the company are posted.
An outside service monitors social media-based contests or ad campaigns focusing on consumer-generated content. Those efforts create a storehouse of material that must be scoured, so Molson uses the service to ensure anything that gets posted complies with relevant laws, and is not offensive.
The company’s legal group has also created a set of social media-use guidelines that have been rolled into the company’s general marketing review process, helping ensure any social media marketing efforts are airtight before being launched. Policies have also been written up and implemented for employees who use social media during work hours. In keeping with its corporate identity, Molson has stopped short of blocking access to Facebook. There are restrictions should those workers post material relating to the company. For example, they must be transparent in adding their comments, clearly identifying themselves as Molson employees.
Brown, meanwhile, is less concerned about copyright breaches via social media. She says few bloggers or online posters use the company’s trademarks without permission for commercial benefit.
Of course, these efforts don’t get done on their own. The chief cost of the social media boom for Molson’s legal team has been an inflated workload. In the past, corporate counsel would be involved in reviewing a small number of radio, television, and print advertisements. “Now, there are so many different ways through social media of reaching your consumer, that it multiplies the elements that a legal department has to review,” says Brown.
The department is now signing off on all those old media ads, along with web sites, e-mail blasts, contests, and promotions with a social media element. The department is managing the onslaught by ramping up its internal expertise to keep as much work as possible in-house.
Even considering Molson’s efforts there are many continuing to shrug off the significance of social media, seeing sites like Facebook and YouTube as fads that have sucked up untold hours of worker productivity and helped tarnish more than a few reputations via ill-considered online posts. These naysayers would do well to consider how long it took the following technologies to reach 50 million users: radio, 38 years; television, 13 years; the Internet, four years. Facebook, meanwhile, reached 100 million users in just nine months. A recent tally pegged the site’s global reach at 325 million active users. YouTube, created in 2005, has millions of users uploading an average of 20 hours of video each minute, and the site recently overtook Yahoo as the United States’ second-largest online search engine.
Canadians appear to be at the leading edge of the social media surge. Forrester Research released a study indicating 57 per cent of about 6,000 surveyed Canadian Internet users said they actively use social networks like Facebook and MySpace, versus 51 per cent of U.S. users, and 38 per cent in the United Kingdom. The survey also showed many of them take an active approach to social media. About 18 per cent create content by writing a blog or uploading videos, while 28 per cent use the tools to act as a critic by posting ratings and reviews. Opinionated citizens clearly are no longer reliant on newspaper opinion editorial pages or radio call-in shows to speak out to a large audience.
The shift has many experts hailing social media as much more than a passing trend. They say it signals a profound change in the way people communicate, forcing businesses to alter their communications and marketing strategies. In-house lawyers, meanwhile, must play a key role in these efforts, helping companies secure their presence in the social media realm while avoiding a minefield of potential legal spats.
Even with the statistics some are taking a wait-and-see approach given the legal questions in dealing with social media. Dante Tamburro, legal counsel at ING Direct Canada, says it remains unclear whether traditional advertising rules apply to social media. Based on that, his view is most in-house lawyers are using “general prudence guidelines” to steer their approach. For example, it has yet to be determined whether an individual commenting on social media forums is considered to be doing so on behalf of his or her employer. “I haven’t seen anything in the legal world yet, or in the marketing world yet, that helps lawyers guide and advise clients. We’re still in first principles.”
In the meantime, ING is treating social media like any other form of communication, overseeing its presence through normal processes such as a media monitoring service. The company’s human resources department has also communicated to employees a policy on appropriate use of social media. “The key point is it’s a developing area and we’re trying to track its development and make sure that we advise internally accordingly,” says Tamburro.
While counsel are taking different approaches to a changed marketing and communications world, they certainly all want to avoid the damage to their companies that some have endured. In April 2009, Domino’s Pizza Inc. got a rude awakening to the power of social media when a video of employees tampering with food — the clip involved nose picking — was posted on YouTube and went viral, instantaneously circulating to millions via Twitter.
Experts suggest the company was slow to respond, as it did not utilize social media monitoring at the time. Domino’s eventually took to social media forums, issuing responses to bloggers who posted the videos. It even uploaded an e-mail from one of the naughty employees stating the tainted food was not served to customers. Domino’s later posted its own response on YouTube, hoping to have it picked up by Twitter users and blogs. Like most PR crises beginning on social media, the story was picked up by mainstream media and reached a vastly larger audience.
The lesson to be learned here is best captured by a comment from a Domino’s spokesperson: “Any two idiots with a video camera and a dumb idea can damage the reputation of a 50-year-old brand.” The incident also shows why companies must take an aggressive approach to communicating to employees just how they are permitted to behave on social media, both at work and home.
Fasken Martineau DuMoulin LLP labour and employment law partner Karen Sargeant said, at a recent seminar in Toronto hosted by the law firm, that social media can have a far-reaching impact on the workplace. Some employers, like the Government of Ontario in 2007, have reacted by taking the drastic move of banning the use of Facebook to keep workers on track. While lost productivity may be the most common concern about social media in the workplace, companies also need a plan to keep employees from disclosing confidential information or posting defamatory statements related to their employer. Experts say Facebook users who list their employer on their profile page may be seen to represent the company, whether or not they have permission to do so, or are even attempting to do so.
Employers can protect themselves from these abuses first and foremost with an Internet use policy, said Sargeant. It’s also vital for companies to make clear to employees they are responsible for their actions in the social media realm. Many workers have an unwarranted belief that their online behaviour is free from sanction.
Sargeant said different companies will create diverse Internet use policies, while some may encourage employees to use social media, while others opt for a blanket ban. Yet it’s vital for all workers to acknowledge their work computer and its systems are the property of the employer, including records such as e-mail. Companies should also add in directives on the activities permitted online, making employees aware their online browsing will be monitored, and penalties exist if directives are contravened. At the same time, consistent enforcement of the policies is key if employers hope to use them in future litigation. “It’s not OK if you allow your CEO to do it but you don’t allow your rank-and-file employee to do it,” said Sargeant.
Employers should also consider using social media to help them deal with issues involving former employees. Social media can provide a treasure trove of information during wrongful dismissal lawsuits. For example, a fired employee who says he has been aggressively seeking other employment for four months but has come up empty, likely shouldn’t have information on Facebook indicating a recent two-month vacation. “Clearly they’re not doing much to mitigate their damages during that time,” Sargeant said.
Companies will certainly have differing approaches to using social media to grow and protect their businesses. But all must take note of the privacy law implications of social media. Faskens associate Alex Cameron says companies must read and follow the terms of use on social media sites like Facebook. They outline specific stipulations about how companies will handle Facebook users’ personal information, and obligations can go beyond applicable privacy law considerations. It’s also critical to periodically return to the site to check for updates, as these terms often change.
“If things go bad, it’s not just Facebook that gets sued, it’s not just Facebook’s problem,” Cameron says.
That became clear in 2008, when a Texas woman sued Blockbuster over allegations it breached the U.S. Video Privacy Protection Act by acquiring her personal information through Facebook’s Beacon Marketing program. Blockbuster eventually reached a settlement with the woman.
In the employment context, Martin Kratz, an intellectual property and technology law partner at Bennett Jones LLP in Calgary, urges employers to be upfront with job candidates. Many employers will mine social media to get a better glimpse at a candidate, without offering notification. That can create privacy concerns, he suggests, urging companies to disclose their intention to do so. “That way it’s a heads-up and a warning, and avoids many problems or conflict.”
Social media expert Mat Wilcox of the Vancouver-based Wilcox Group, stressed the need to be on the lookout for “brand squatters” to protect a company’s reputation. She said a college student set up a Twitter account titled “theBKlounge,” using it to pose as a Burger King Corp. spokesman. He amassed 1,500 followers, and it took more than two months for the company to notice the imposter. When Burger King did uncover him, the company avoided a knee-jerk reaction. In fact, it put him on the payroll and encouraged him to continue. “They figured, it’s better to own the problem than to manage the problem,” said Wilcox at the Faskens seminar.
A long list of other major corporations have lost control of their brands’ Twitter presence, such as Exxon Mobil, Bank of America, Macy’s, MasterCard, Sears, Nike, and Wal-Mart. “They’re going to be relying on their legal counsel to try to get them back, and trust me on this, it is not an easy thing to get your brand back when somebody has taken it,” said Wilcox. “It’s a legal nightmare.”
The first step to avoid this is to log onto Twitter and claim accounts with your company’s brands, and post updates often enough to avoid getting booted from the service for inactivity. Similarly, it’s a good idea to be proactive and lay claim to your brands in all social media sites.
Wilcox even suggested signing up for web domains, such as “yourcompanysucks.com” and the like, to stem opportunities for future brand damage. “Consumers are now being swayed not by advertising anymore but by what is said in social media. So if you have the kind of company that relies on consumers to purchase your products, you better be on social media, and you better be doing a great job of it.”
