Even though 2009 was a bad year for advertisers, advertising - whether on radio, TV, print, on-line adverting, telemarketing or flyers delivered to your door - is still a multi-billion dollar industry.
Advertisers are trying to do two things: make you connect with a brand, and create a demand for the product or service associated with the brand so that you'll buy. The way to legally protect a brand is by owning a trade-mark for the words or design that make up the brand.
But just like The Beatles were more than the mere sum of their parts, a "brand" is more than just a trade-mark. There is goodwill associated with a brand, and this includes subjective and hard-to-quantify attributes like the loyalty of the customers who buy the product or service associated with the brand. It also includes the reputation of the company behind the brand.
Reputation matters. That's why when Maple Leaf Foods had a problem with an outbreak of listeriosis in its products last year, it was a public relations nightmare as much as a legal one. But sometimes the only way to save the brand is for the public relations objectives to outweigh the legal ones.
Having the CEO say in newspaper ads and elsewhere in the media, "Sorry, it's totally our fault and we'll fix it," might give your lawyers fits, but it might make the customers very happy. Customers appreciate the fact that someone actually takes responsibility for a mistake rather than weaving, dodging and bobbing around the issue to avoid legal liability. By dealing with a crisis by taking responsibility for it, Maple Leaf Foods may well have saved its brands and saved the company's reputation.
But it's not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see. This is one reason most law and business schools tell their first-year students to get rid of their compromising Facebook pages and to change their e-mail addresses from firstname.lastname@example.org to something more professional. They are warned to watch what they say and do on social media and on their personal blogs. Employers can and will check up on prospective employees on the web, and so will clients. People will be judged on the basis of those provocatively dressed pictures that were posted on Facebook way back in 2008, or the nasty rant about a deadbeat job and a lousy boss from 2006 on a blog.
Unfortunately, once something is on the web, it's hard to get it off - a lesson learned by B.C. NDP candidate Ray Lam during the last B.C. election, when some "inappropriate" photographs were found on his Facebook page, and he was forced to drop out of the election after the pictures went public.
Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is "reputation management law." It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up.
For example, blogs aren't anonymous anymore (even if they're meant to be), and won't shield a person from an action in defamation, as New York blogger Rosemary Port learned the hard way earlier this year. Fashion model Liskula Cohen sued Google Inc. (on behalf of its subsidiary Blogger.com), for the identity of the anonymous blogger of "Skanks in NYC," who, Cohen argued, defamed her in online comments relating to Cohen's sexual proclivities. Cohen couldn't sue the alleged defamer because the blog was anonymous. She could only sue the defamer if she knew her identity.
The court agreed with Cohen and ordered Google to disclose Port's identity. Whether the comments were defamatory or not wasn't the issue. But it appears you can't make comments that could be defamatory and hide behind the anonymity of the web anymore.
From an employment law perspective, corporations don't want their employees slagging their managers or the brand on Facebook, Twitter, blogs or elsewhere on the web, so if your company doesn't have a policy on the use of social media by employees, it should start developing one right away. If your brand is important to you (and it should be), it doesn't hurt to advise your employees that you engage a service that monitors the use of the company's brands everywhere on the web, so "trash talk" about the company will be discovered. And yes, there are companies that actually do this.
It's one thing to tell employees they might lose their jobs by making critical comments about their employers online, but what about customers who say horrible things about your company on the web?
Taking a page out of Maple Leaf Foods' playbook, one might say, "We're sorry, it's our fault and we take responsibility for your bad experience," and this might help from a public relations perspective. But if not, there are companies that will clean up reputations, such as a bad TripAdvisor review of your hotel or restaurant. Some call this "search engine de-optimization," and it works the same way that search engine optimization works, except in reverse. But maybe you just "suck it up" and use bad publicity on the web to improve your product or service.
Either way, it's clear that online reputation management is the next big thing that everyone will have to deal with.
Tony Wilson practises franchising and intellectual property law at Boughton in Vancouver and is an adjunct professor at Simon Fraser University. His book on online reputation management will be published in the fall of 2010.