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Dealing with Unauthorized or Negative Publicity in Social Media

A brand owner needs to establish procedures for responding to false or negative product reviews and the like. Consumers are more likely to trust or be influenced by an online review than an advertisement. The key is to have monitoring procedures in place so a brand owner can respond promptly in an appropriate fashion. In addition, brand owners need to develop and implement guidelines for their own employees concerning what they can and cannot do in a social media context. The guidelines should instruct employees and be incorporated in an employee handbook or a standalone document. The guidelines must be seen as part of and consistent with the overall brand management strategy of the brand owner. The guidelines should deal with the following matters, among others:

a) positively reflecting on the brand;

b) who within the organization is responsible for compliance?

c) who may communicate with users of the site?

d) who is responsible for monitoring, and how it will be done?

e) what type of sign-off is required?

f) who is responsible for monitoring for “takedown” activity when objectionable postings are found?

g) who is responsible for responding to media enquiries?

In addition, brand owners need to consider how social media will need to be dealt with in any trademark licence. If the licensee will be involved with social media, guidelines should be in place concerning the activities of the licensee.

The Competition Bureau has recently been active in monitoring social media abuses. They announced they had entered into a consent agreement with a large company relating to “flogging”—the generation of fake blog entries relating to products without disclosing ties to the supplier of the product—and “astroturfing”—grassroots user reviews of products who are not disinterested in the products. The agreement provided for an enhanced corporate compliance program with specific reference to this type of inappropriate promotion and an administrative monetary penalty of $1.25 million.

If you have questions, please contact me at

Goldman Sloan Nash & Haber LLP 480 University Avenue, Suite 1600 Toronto, Ontario M5G 1V2 Direct Line: (416) 597-3371 Fax: (416) 597-3370 Email:

These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.

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