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Oz Sultan joins the “Law & Business” podcast to speak with Anthony Verna about social media and legal issues.
Oz Sultan
How do businesses use social media? What is the changing face of social media? How do business interact with customers and potential customers in social media? What are the legal issues that revolve around social media in today’s world?
Here is a lightly-edited transcript of the podcast:
Anthony:
Welcome to the Law & Business Podcast.
Oz Sultan:
Thank you.
Anthony:
I’m, I’m here with Oz. I will let you plug away.
Oz:
Sure. I am Oz Sultan, I am a digital media and strategy consultant that does three things.
We build strategy for startups and mid-tier to large brands.
We put together exciting social media programs like what we’ve done for Xbox and The Economist and recently we’re launching an analytics dashboard, which I’ll probably be talking about more on the next few weeks.
If you have big data problems, I have a solution that makes them simple and easy to present to your executives. And we all have big data problems.
Anthony:
Exactly.
Oz:
I’m glad we’re putting this together. So Phil, so we’re on periscope. If you’re watching live and if you’re listening then it’s the podcast and it’s not locked.
It’s also because periscope records and you can go back and watch this later at your leisure.
Anthony:
So welcome. Welcome to the Home Office.
All right, so social media. I think a lot of people thought, think of social media as Facebook and Linkedin and maybe Twitter. I mean we see Twitter as social media, but I think a lot of people are locked into that.
Today we’re seeing Instagram obviously pop up. Pinterest and Instagram being very different ways of sharing photos. Right. And I mean obviously other social media and, Yik Yak coming around now that Periscope is here and really know your periscope is used often.
So, how has social media change happening? Let’s start there. How has social media changed?
Oz:
I think we can look at and look at kind of two things. So social used to be conversational, going back to 08, it was conversational mediums for which you can find other people talking to other people. Then it became brand-building across conversational mediums. I’m the next Senate into Facebook with Facebook ads becoming, , brand platforms. Now what we have is brandy commerce on Facebook through Shopify. Nice plug for at Alberton’s there. A variety of other mediums and kind of bringing into this foray. We saw the popularity mere cat itself by this year. We’re also seeing Periscope a couple of days later just launching. I think what you’re looking at is you’re looking at the same shifts and social that you saw in radio and television maybe about 60 years ago. So all of a sudden, when radio came out, people were like, no television.
Anthony:
Wow.
Oz:
And, and now what you have is you have brand adoption problems, right? Because things are shifting. So we have, we’ve shifted from a conversation economy to a platform economy with Linkedin and Facebook and like, and now we’re, we’re shifting to a video economy. There’s also a secondary conversation economy coming with things like Twitch with their acquisition of Justintelevision as well as looking at all of the associated gaming plays that are now coming into the foray.
Anthony:
A couple of a couple of thoughts come, come to mind.
One is that with my clientele and, and for those of you who don’t remember my, my law focus is intellectual property and Advertising Law.
We met at an apparel and fashion event. I always think of that as intellectual property for the fashion rather than fashion law. Like to me that there’s no such thing as fashion law. But anyway, anyway, I’m digressing: the television show, these things, they have fashion. Gotcha. But one for my clientele, they’re not really seeing a return of things like Facebook ads or even having a Facebook page. They’re not really seeing a return on their time investment. And two, you mentioned gamification. I don’t want to sit here and say that gamification is feeling passe, but there’s a part of me that’s feeling as if gamification is feeling passe. So, I’ll take your thoughts on, on those two points.
Oz:
If you were building a brand and you need to look at returns, you have to look at it from the perspective of are we building this brand for visibility? Are we building this brand for lead generation or are we doing both and trying to drive sales? If it’s visibility, you use all of the usual suspects, you use Facebook, you use Twitter, you use Linkedin maybe inside of groups to kind of push up perspective, right? Instagram really becomes sort of the tastemaking of the Internet, what you are and it gives people a sort of a flavor and feel.
It shows what the product can, can be. , with Instagram is great cause you can show what the product is, you can show how to use it, you can show exactly how it’s made. You can make people, if it’s made in a way that feels good and we can define that however you want to define it.
You can show how it’s made and make the consumers feel good about buying the product as well. There are a lot of things that that can be done from an advertising standpoint on, on, on Instagram.
Anthony:
We’ll then that ties in the Pinterest.
Oz:
So Pinterest and Instagram have become one of the major harbingers of: You can drive e-commerce, you can drive sales. There’s also, I think, a misunderstanding because there’s levels inside of advertising. So if you’re a small and medium size business who’s spending less than a thousand dollars a month in any of the, adwords, Facebook ads, Instagram ads, Twitter ads, sponsored tweets, that sort of thing, you may not see a lot of yield. And I think what you need to figure out is where is your audience and how do you best get to the audience with that plus content plus the content you’ve developed and maybe even sponsored content if you’re a mid-sized company.
Facebook ads really sort of work combined with an advert strategy combined with an outbound strategy for your digital advertising. And if you’re a much larger brand, take a, take a car brand like Chevy or something like that, you have variated segments of spend that are then broken across multiple spenders or agencies, and you want to tie that information back together.
So, to that point I think of the problem is emblematic of what’s going on in the industry right now because there’s just too much. And bringing that back, maybe giving more analytics capability, dashboarding, something like that helps. But at the end of the day, I think it’s really kind of having a cohesive strategy. Now to the, the second piece that you were talking about, which was: Inside of this large shifting world that we’re in, what do you do? I think it’s kind of like, how podcasts became de rigueur, four months ago, all of a sudden “Serial” came out and serial is huge.
Anthony:
Serial’s huge. I would say Freakonomics. The Freakonomics podcasts has been around like, what, three years now at least?
Oz:
And he has amazing content.
But, a lot of traditional radio talk shows, put a podcast out, I mean it’s basically a recording of that day show. But you can listen on demand. I mean, you can listen on demand. I mean that seems to be the real key now. But yes, podcasts have become required because people are tuning in whether it’s something new or it’s something traditional now sent on a podcast.
Anthony:
Right. So, I mean I think the, the, the challenge there is, okay, you are a brand on any one of those levels, small, medium, and large. What do you do? How do you engage?
Oz:
I think a lot of it’s really going back to how the industry was, , built in 2008 you had marketers that were institutionalized, like PR firms, marketing firms, big marketing houses, that sort of stuff. , publicists, everyone knows sure. Owns half of the industry; what you’re getting now is specialized agencies. But I think it really kinda comes down to finding folks inside of your conversational space or maybe inside of your influencer space that actually are doing this. And, like what we’re doing today with Periscope, it is barely a month old and this is our first periscope. And so we are, we’re testing the medium. But I think you, you can’t be afraid to test the medium and you can’t be afraid to dip your toes in the chart and look, if you make a mistake, as long as it’s not something egregious, kind of like American Airlines did with the new lady photo.
Anthony:
We don’t need to go into that.
Oz:
Yeah. Some of the more reason things like -Edmonds with not guilty verdict. The Casey Anthony Verdict, like at least your social media person can go and look at what the Frickin Hashtag, , you can’t say, we feel not guilty about you eating our tasty cakes.
People were like, you do know that’s about someone who potentially allegedly killed your child?
Anthony:
I want to go back to an earlier point that you made and that is if, if your business is pushing a brand out, because that really goes to the heart of what our law practices in terms of protecting trademarks. But more than that, it’s during the due diligence because I’m finding a lot of smaller businesses aren’t necessarily doing the due diligence. They just want to push things out and damn the consequences. And for a lot of them they’re finding out that they’re getting, they’re finding out that that trademark law doesn’t work the way that they think it does so that they’re pushing out brands that might be similar to a bigger company and their goods and services might be similar and they’re getting cease and desist letters and they’re getting sued and they, they sit there and they say, I don’t necessarily know how it happened. On the same token, it’s really about that due diligence and for our philosophy, the due diligence is king and it seeing before you start pushing things out, it’s about finding what else is out there, what’s in the universe of the proposed trademark or brand name and see who could potentially sue you. Because, we don’t want a small business to be the victim of a suit. We want a small business not to be a defendant, but to actually grow.
Oz:
Right. And I think that that speaks to a lot of laziness. I think on the part of you, it’s like: look, if you are thinking that you can dip your toes in and you’re just, you’re not necessarily doing any kind of research. I mean, this is not complicated stuff. Okay. You can go to Twitter, there’s hundred different trend tools out there. You could use something like hootsuite and you can just go in and you’ve actually set reports to look at these things. And what you should be doing is to not look at the ground, but understand the ground so it’s not shifting beneath your feet. The other thing to look at too is the concept of co-option, right? So even going back to like my space is having a conversation with this with a colleague who’s a new director of innovation yesterday, and I think one of the things is that, brands didn’t know what to do way back when all of a sudden people were co-opting their brand and like putting Adidas logos all over their myspace.
We haven’t necessarily seen this in the translation to Facebook, but what we have seen is people using brands, logos, brands, identities, excuse me, in ways that the brand might not want but will shark. But the thing is on the brand side, they have to think about what is that doing at the end of the day to drive popularity and engagement for that brand. And sometimes you just don’t want to do anything on the opposite side. To your point, if you’re a smaller brand and you might be encroaching on a larger brand, do a little bit of research. I mean run a run a couple of queries. If you’re going to Google a recipe, it’s not hard enough to, to Google, , it to see if there’s some competitors out there who are larger than you with more money.
Anthony:
And, and for those of you on periscope, I’m holding up this big gigantic thick book. How for the podcast listeners, how thick is this book? Cause it’s about two inches – it is 601 pages. This is a trademark search report from Thomson Reuters. And we ordered these for every single new trademark that a client gives us. And it gives us the data of what’s been filed in the patent and trademark office. What’s actual, we actually get a Google search. So what’s used there? We get state trademarks, state corporate names. I mean this sucker is big and that’s a part of not being lazy.
Oz:
Well I think that that’s another thing to kind of keep in mind. He just look at, look at, Oh yeah, you can’t see them. So just keeping in mind, this is for you when you’re kind of creating a brand. So not saying that you have to do this kind of a thing, right, but go to the fricking s PTO, go to go to a couple of these sites and do your research, do your due diligence before you, no off half cocked and find out, , I know it’s a cease and desist or, or even worse, you end up looking like a clown social media. Because this is the era where we are not tarring and feathering you physically. It’s happening metaphorically. And that doesn’t go away from this period.
Anthony:
By the way, I am not saying you need to get one of those reports, but that’s my philosophy of a new brand, make sure you do a trademark search.
Can you give examples of, of brands being tarred and feathered by either the choice of a new brand name for a new product that, that accompany might have or for even the choice of, of a poor hashtag on Twitter because, because I’ve talked often about how hashtags on Twitter are like trademarks when brands use them because they’re advertising slogans at that point.
Oz:
Well the first one that kinda comes to mind, which is very topical today is the Apple IWatch or the Apple Watch, so to speak. Apple IWatch, Apple will not be, well first of all, they weren’t allowed to use IWatch because this trademark was registered in Switzerland – filed, I think, 20 years ago. Secondarily Apple Watch, Apple will not be able to sell their watch in Switzerland until the end of December of this year because there is an existing trademark in Switzerland that expires, I think it’s December 25th for Apple Watch.
Anthony:
I didn’t know that. Yeah. So did they make a deal with, with the owners?
Oz:
If you were in Switzerland as, I have no idea if any reviewers are going down to Italy. There’s this lovely country called Germany. So then you call friends. And then get yourself an Apple Watch.
Anthony:
I know you can, you can drive through Lichtenstein.
Oz:
No, that’s Oculus.
Anthony:
We’re being a little silly, but that’s okay.
What examples of, can I say “bad hashtag”? – are there?
Oz:
What you want to avoid is you want to do, if you’re using a Hashtag for a campaign, you want to make sure that it’s not co-opting, say, a culture co-opting or religion, things like that.
There’s campaign right now. I would look up the Hashtag right now, but my phone is recording. I think it’s not my Hashtag, not my culture, which is kind of an anti-appropriation of the use of BMDS or the Hindu religious doc by attendees of Coachella.
So it’s, in fact, a very postmodern appropriation of culture, which, which is being chastised there. And we, we, we’ve seen this with black face and a lot of other things going on recently, in of really bad hashtags, that are culturally or politically insensitive or just the absolutely useless.
I actually think I have to go with much longer hashtags that your company doesn’t get because they don’t understand the medium. And, to that end, Game of Thrones.
With GOT, and I actually could be a good segue for, Game of Thrones, but some of the, some of the hashtags around Ferguson have gotten a lot of views, and a lot of folks in hot water.
Similarly, anything that has to do with political issues, who are going back to the Trayvon shooting. There were a lot of hashtags there as well that oddly: it’s, if you don’t know what you’re doing, you don’t know what you’re talking about and you don’t understand the culture has changed.
68 million millennials in this country and they are driving conversation culture online. This is scaring marketers in a way. I would just say, look before you leap.
I think that’s what a lot of folks do. They go, “Hey, this is a great idea. Let’s do it. They don’t look.”
Anthony:
Yesterday the Cleveland Browns released new uniforms for the next seven seasons and their Hashtag with that was “we bark together” because the fans are the dog pound. So, how bad is that?
Oz:
Bad.
Anthony:
Said the Steelers fan here sitting next six to me.
Oz:
Are you going to say this? Not just that I’m a Steelers fan. It’s born and raised in Pittsburgh, and then being an expatriot in New York, as I like to call it.
But, we paid tax for that team for like 15 years and people will live in Pittsburgh, are still paying the Steelers tax.
You may not know it, but that’s the sales tax raised about a percent, but a decade or two ago just to pay for those new stadiums or enjoying my stadium.
So, but yeah, that’s just a horrible hat. That’s a horrible Hashtag. I mean that, that’s almost as bad as the Patriots Hashtag and campaign that got co-opted, and the other thing too is that with not just hashtags, but any campaign that you’re running,
For example, Doritos had done a flavor campaign that they had to drop in or they had to refactor because 4chan took it over.
I think one of the flavors that came to like the number one or two flavor was Hitler did nothing wrong. So, one of the things that you have to kind of keep in mind is if you’re ready to do open ended marketing that lets anybody and everybody kind of play in the game, there are going to be people who don’t play nicely.
4chan does not play nice on the reddit communities and can get especially vociferous about things if you piss them off.
And these may be things that you and your brand are not necessarily looking at.
Anthony:
What are the other things?
Oz:
Got a case in point: Taylor Swift fans out there.
Taylor Swift had run a campaign that was also hijacked by 4chan where she said she would play any high school. So 4chan mobilizes their troops and the winning school was a school for the deaf.
Anthony:
So you, see with this is this is the wild west.
Oz:
Know your brand, know your audience, but then also know that like if you do these open-ended things or if you don’t do your research, the stupidity can happen. And it can really affect you, and people won’t stop talking about it for a while.
Anthony:
I’d also say to make sure that you understand the terms of use of whatever network.
Oz:
Why don’t you talk about terms of use in terms of conditions?
Anthony:
Well, yeah, sure, sure. And I’ll also add in there state laws of promotions as well because it all comes together in, in one package of, of advertising and promotion. You need to make sure that you understand what you’re allowed to collect from, from consumers or potential consumers, what you’re allowed to give away. And of course, tax issues as well, although I’m not a tax attorney, but for creating a promotion, you need to make sure that there’s always an alternative means of entry. If it’s, if we’re dealing with a sweepstakes, you need to make sure that it’s not going to be, forming a contract. There has to not be consideration in there.
And if somebody is filling out a web form for a minute or two or somebody who’s just putting up a Hashtag, I mean that’s not going to be considered consideration because it’s a little bit of time. But the a business should think of promotions as good things because despite the regulations, you’re collecting usernames, you’re collecting names, sometimes email addresses, sometimes phone numbers, , sometimes, postal addresses so that you can, you can keep hitting your consumers time and time again over various media. So, but there are regulations and every state has those regulations and terms of use for all show know maybe a the terms you used and then the, of course the impact of say e-commerce laws from California. Sure. A couple things on terms of use, you have to make sure that your promotion follows the terms of use of the medium.
And Facebook would be one medium. Instagram would be another medium. Twitter, it’d be another medium. They are totally different in how you treat the promotion is going to be different as well. For example, in order to neutralize any favoritism and which is a big state law issue, it’s not really favoritism, but to make sure everybody has the same number of entries in a promotion or in a sweepstakes. Facebook says if you are treating a like as either a contest entry or a promotion giveaway, you have to treat every single like exactly the same. So in other words, you can’t give your early likers for lack of a better word, preferential treatment unless the promotion ends of course. But you also can’t give those who already liked your page less treatment when you start a new promotion.
So it, it’s a very balanced way of saying, of treating that particular, , business wet webpage. So, so that’s something that or Facebook profile that’s, that’s something that every business needs to think about. So every single web company has, our social media company has a different way of doing that, the whole data retention side. So California passed a law about 15 years ago that basically says like, for example, let’s say that you sign up for something, but it also includes a, a trial, right. Which a lot of stuff’s happening.
Oz:
I mean, I tried to sign up for some trial software for 15 days the other day and , I forgot to cancel it and instead of sending me something for like x amount of month, they sent me a bill for 12 months for 600 bucks. And so I had to email their customer service and say, cancel this. Nothing in the ramifications of this if you’re running a contest or promotion where people are signing up with credit cards. Right. Okay. So the California online privacy protection act?
Anthony:
Basically says that if you were going to have collected credit card information stored in a database, it has to be encrypted. If it’s not encrypted, they and some, when something happens, and I mean, look, look at Target last year…
Oz:
Well, but that’s because of the supply chain issues.
Anthony:
Target, target bought like five different brands in Canada and couldn’t combine the five different brands. They found that a lot of the consumers really had good feelings towards the old companies. I mean, it’s a retail store and they didn’t really target properly. And so, and then Target had the supply chain issues, surprise! Canada’s a different country with a different culture in a different way of doing things. I don’t know why they were surprised about that. So, so when you start adding up all of their particular from the brand problem, from the supply chain problem to the data problems, to the data problems, add everything up in a big, in a big chunk and it wound up really being a failure..
Oz:
One of the things that’s also considered too is: let’s say the consider a target, the Kellogg, the Kaloko thing, they haven’t been prosecuted yet, but what you do have is you have all the banks saying that they’re going to file civil lawsuits against target because really the culpability is on target. So, the company is now in question four, are the insurers covering this? Is target coming in to take a hit? Will there be a massive stock fall off? , and, and all of these things are being tried in the court of social media. Yeah,
Anthony:
It’s always going to be in the court of social media because that’s how people interact today. Oz, thank you for joining me in this episode of the Law & Business Podcast.
Oz:
Thank you. Cheers.
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