A relative new kid on the social media block, Pinterest is growing quickly, with rating figures suggesting that UK traffic increased almost 50% between December and January alone.

Perceived as being particularly attractive to women, the attraction of the site is obvious: users can create virtual “pinboards”, grouping together images and other content under their own profile, then sharing them with their followers.

Pinterest’s terms and conditions require users either to own, or have obtained the right to use, any content which they pin. One estimate, however, is that 99% of pins don’t comply with this requirement.

Should you worry if your content is being copied without your knowledge or consent, or without linking back to you as the original source?  The consequences are potentially serious: you lose control of how your images are seen and presented, risking real damage to your brand.

What Can You Do?

Pinterest offers two tools for copyright holders to use: -

• “Pin It” Button. Added to your website, as with Twitter and Facebook buttons, this acts as a kind of virtual permission slip and means that if your customers pin your content to their boards, your details and description go with it. On the site’s Goodies page, there are instructions and a video tutorial on how to install the “Pin It” Button.

• “Opt Out”. Within its “Help” section, Pinterest have now added a line of code which website owners can use to block their content. Anyone trying to copy content which has been protected will receive the message: “This site doesn’t allow pinning to Pinterest. Please contact the owner with any questions. Thanks for visiting!”

If your material is already on Pinterest without your consent and you want it to be taken down, the site also offers the option to submit a Copyright Infringement Notification.

© Suzanne Dibble, small business law expert 2012

If you wish to reproduce this article, you may do so provided you add the following credit:

This article was written by Suzanne Dibble, award winning founder of Lawyers4mumpreneurs, the only business law practice in the UK to exclusively focus on helping mums in business. For more information and scores of testimonials from happy clients please see http://www.lawyers4mumpreneurs.com

Twitter can be a fantastic marketing tool, but you need to be aware of the legal implications.

1. Make sure you comply with advertising regulation

The CAP Code now applies to websites, Facebook and Twitter (and any other non-paid-for online space under your control such as other social networking sites). The CAP Code says, amongst other things, that advertising should:

• be legal, decent, honest and truthful.
• be prepared with a sense of responsibility to consumers and society.
• respect the principles of fair competition generally accepted in business.
• not mislead by inaccuracy, ambiguity, exaggeration or otherwise

The CAP Code can be found here.

The Advertising Standards Authority (“ASA”) is generally reactive in that it tends to deal with complaints received rather than actively reviewing marketing communications. This may influence the approach to compliance. However it is worth noting that the ASA’s sanctions are also being increased so that it can:

• Name and shame offenders, both on the ASA’s website and on paid-for advertisements on internet search engines which highlight continued non-compliance.
• Remove paid-for search advertisements that link directly to the non-compliant marketing communication on the advertiser’s own website or other non-paid-for space online under its control.

2. If you are paid to endorse products, make this clear in your tweets

One way to do this might be to include the word “#spon” or “#ad” in your tweet, but you must make sure that all the circumstances of your tweet comply with the advertising regulations set out in point  1 above. The ASA recently investigated complaints about Rio Ferdinand and Katie Price advertising Snickers chocolate bars by sending out a series of unexpected tweets (Rio Ferdinand’s were about knitting and Katie Price’s were about the Euro zone economic crisis), followed by a tweet saying “You’re not you when you’re hungry @snickersUk #hungry #spon” with a link to a picture of the relevant celebrity eating a Snickers bar.

The complaints were that it was not clear from the tweets that the celebrities were being paid to advertise the chocolate bars, in particular the first “teaser” tweets which mentioned neither Snickers nor sponsorship. In this case the ASA did not take any further action because, although the first four tweets formed part of an “orchestrated marketing campaign”, they did not mention Snickers, and the final tweet made it clear that the celebrities were being paid for the endorsements.

In this case the ASA accepted that the sponsorship was made clear by a combination of:

• the photos of the celebrities with the Snickers bars; and
• the use in the final tweet of the Twitter phrase “#spon” (meaning “sponsored”).

If you are paid to endorse products, then you will have to check very carefully that your particular tweets make this clear.

3. Don’t make any defamatory statements

At least two people have faced claims for libel or slander after making comments about another person on Twitter. The first was a politician who claimed on Twitter that his rival in a by-election campaign had been removed from a polling station by the police. The rival claimed in the High Court that the statement was untrue and defamatory and the Twitter user was reportedly obliged to pay £3,000 in compensation plus both sides’ legal costs.

The second is an Indian business-man who is facing a libel claim from former New Zealand cricket captain, Chris Cairns, after he made match-fixing claims on Twitter against Cairns.  The claims (which Cairns states are “wholly untrue”) were repeated on a cricket website. These cases demonstrate the need to be very careful when writing about other people on Twitter and other social networking forums online.

4. Tweets are considered public property so don’t disclose confidential information

We’ve all heard of emails “going viral” and so can tweets. Tweets can be published in other media, including newspapers, and may be credited to you. So don’t write anything in a tweet which you would not want to read in a newspaper with your name next to it! Remember that even replies to individual tweets or re-tweets are still public statements. You must also avoid disclosing any confidential information about you, your clients or any third party.

5. Don’t infringe anyone’s intellectual property

You should not tweet anything which might be protected by copyright or any other intellectual property right. This includes all sorts of material, including photos and articles, so check with the author or owner first and if in doubt, don’t tweet it.

6. If you have employees, put in place a social media policy

As a business owner, you and your business could be affected by tweets sent by your employees. So you should put in place a social media policy and make sure your staff is aware of it. We can help you with your social media policy, so get in touch if you would like our help with this.

7. If you are an employee, state that the views you express are yours rather than your employer but still be careful what you say!

You can do this in your Twitter profile. However, be warned that you cannot stop people making the link between your tweets and your employer, and this could land you in trouble. A member of staff at the Department of Transport had a disclaimer in her Twitter profile stating that the tweets were personal opinions and were not representative of her employer. This disclaimer did not stop The Independent from publishing her tweets (about her job, her feelings towards work and wider political issues such as describing a course leader as “mental” and posting links to tweets attacking government “spin” and Whitehall waste) in an article about her employer. She complained to the Press Complaints Commission, but they found that because tweets are public property this was not an invasion of her privacy.

8. Jurors must not discuss or comment on cases

If you are a juror you could be found guilty of contempt of court if you tweet any information about your case. Contempt of court can be punished by a prison sentence.

9. Court documents can be served on you via your twitter account

In a case where a twitter poster was impersonating someone else, there was no easy way of identifying the impersonator, so the court allowed court papers to be served on the Twitter account. The victim was Donal Blaney, who runs a blog called “Blaney’s Blarney”. The impersonator had set up an account called @Blaneysblarney together with a photograph of the real Donal Blaney and a link to the real blog. The High Court has also allowed court proceedings to be served via Facebook where the defendant’s postal address was uncertain.  So don’t think that hiding behind a Twitter alias will protect you.

10. Freedom of information requests can be made via Twitter

If an authority has a Twitter account, then freedom of information requests to that authority can be made via Twitter, as long as the requestor provides his or her real name (either in their Twitter account name or their Twitter profile) and an email address. This was confirmed by the Information Commissioner’s Office in its monthly newsletter, which stated that the authority should reply to the request either by email or by publishing the reply on the authority’s website and sending to the requestor a link to the relevant webpage. The request need not even be tweeted directly to the authority. It is sufficient to refer to the authority in an “@mention” (e.g. “@ICOnews”), because the authority is able to check for @mentions.

If anyone knows any other legal issues to be considered when using twitter, please do let us know and we will add them to the list.

© Suzanne Dibble, small business law expert 2012

If you wish to reproduce this article, you may do so provided you add the following credit:

This article was written by Suzanne Dibble, award winning founder of Lawyers4mumpreneurs, the only business law practice in the UK to exclusively focus on helping mums in business. For more information and scores of testimonials from happy clients please see http://www.lawyers4mumpreneurs.com

If you are trading as a limited company, a limited liability partnership (LLP) or you are a member of a regulated profession, by law you must include certain information in your email sign off. And no, it isn’t “sent from my iphone”…

Information required from companies

If you are trading through a company or an LLP, you must include the following information on ALL business communications, including e-mails:

• Your company’s registered name.
• The part of the UK in which your company is registered, for example, England and Wales.
• Your company’s registered number.
• Your company’s registered office address.

Information required from members of regulated professions

If you are a member of a regulated profession (such as a financial services company or a solicitor) you must also provide:

• The details of any professional body or similar institution with which you are registered.
• Your professional title and the member state where that title has been awarded.
• A reference (ideally through a hyperlink) to the professional rules applicable to you. If you can’t add a hyperlink, you must explain how such professional rules can be accessed.

Should you include a confidentiality notice?

You will have probably have seen this type of notice on the bottom of emails:

This email is confidential and intended solely for the use of the individual to whom it is addressed. Any dissemination, distribution, copying or use of this communication without prior permission of the addressee is strictly prohibited. If you are not the intended recipient you have received this email in error. Please accept our apologies, notify the sender on the above address, and then delete all copies of this email.

Most people place these notices at the bottom of emails. However if you do this, it is actually doubtful whether such a notice would be effective as the reader will only see the notice once they have read the email and therefore can’t have agreed to the terms before they read the email. In order to increase the chances of the notice being effective it should appear at the top of your e-mail and should not be generated automatically but only added to particularly sensitive emails.

Should I include a disclaimer?

You may also have seen this type of thing at the bottom of emails:

Please note that X Limited cannot accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments.

Again, it is not clear that such a disclaimer would be effective. As a general rule, the broader the disclaimer, the less likely it is to be effective. A general disclaimer that excludes all liability for losses resulting from reliance on anything contained in an e-mail is unlikely to be enforceable.

Saying all that though, on balance, it is still worth adding in confidentiality notices and disclaimers at the bottom of your email.

© Suzanne Dibble, small business law expert 2012

If you wish to reproduce this article, you may do so provided you add the following credit:

This article was written by Suzanne Dibble, award winning founder of Lawyers4mumpreneurs, the only business law practice in the UK to exclusively focus on helping mums in business. For more information and scores of testimonials from happy clients please see http://www.lawyers4mumpreneurs.com

© Nasir1164 | Dreamstime.com

The easiest way to stop a competitor using your name or logo is to trademark them.

Benefits of registration

Registering your trade mark gives you the exclusive right to use your mark for the goods and/or services that it covers.

If you have a registered trade mark you can put the ® symbol next to it to warn others against using it. Note that using this symbol for a trade mark that is not registered is an offence.

A registered trade mark:

• may put people off using your trade mark without your permission
• makes it much easier for you to take legal action against anyone who uses your trade mark without your permission
• allows Trading Standards Officers or Police to bring criminal charges against counterfeiters if they use your trade mark
• is your property, which means you can sell it, franchise it or let other people have a license that allows them to use it.

Protecting unregistered trade marks

If you don’t register your trade mark, you may still be able to take action if someone uses your mark without your permission, using the common law action of passing off.

To be successful in a passing off action, you must prove that:

• the mark is yours
• you have built up a reputation in the mark
• you have been harmed in some way by the other person’s use of the mark.

It can be very difficult and expensive to prove a passing off action.

If you register your trade mark, it is easier to take legal action against infringement of your mark, rather than having to rely on passing off.

Initial questions to ask yourself

1. Does my proposed trade mark distinguish my goods and services from those of my competitors? If not, you won’t be able to register it.
2. Does my proposed trade mark describe my goods or services or any characteristics of them, for example, marks which show the quality, quantity, purpose, value or geographical origin of my goods or services? If so, you might not be able to register it.
3. Is my proposed trade mark customary in my line of trade? If so, it may not be capable of registration.
4. Is my proposed trade mark distinctive? If not, it may not be capable of registration.
5. Is my proposed trade mark offensive or against the law? If so, you won’t be able to register it.
6. Is my proposed trade mark deceptive? There should be nothing in the mark which would lead the public to think that your goods and services have a quality which they do not.
7. Should I trademark my name or my logo or both?
8. Is anyone else using my proposed trade mark? Search online for free at http://www.ipo.gov.uk

How much does it cost?

It costs:

• £170 to apply to register a UK trade Mark if you apply on-line (£30 discount applies for on-line filings). This includes one class of goods or services. It is a further £50 for every other class you apply for.
• £200 to file using the Intellectual Property Office Right Start Service. This includes one class of goods or services. It is a further £50 for every other class you apply for. The main benefit from this service is that only half the total fee is payable at the time of application. Once you have received our examination report you may either abandon the application or proceed by paying the remaining balance.
• £200 for all paper filed applications; this includes one class of goods and services. It is a further £50 for every other class you apply for.
• Renewal fees are payable every 10 years if you wish to keep your trademark in force.

The application fee cannot be refunded for any reason and you cannot alter your mark after you apply. This is why a lot of people choose to engage a trademark lawyer to assist with the clearance and application process.  Lawyers4mumpreneurs fees are very reasonable for this assistance and we are pleased to offer you a free initial consultation to discuss your requirements and provide you with free initial advice. Please email us at support@lawyers4mumpreneurs.com to arrange your consultation.

Copyright (c) 123RF Stock Photos

When you get to the stage in your business where you need to take people on to help you grow the business, you may decide to either employ somebody or to take on associates. Many people decide to take on associates at first to avoid paying Employer’s NIC’s and being subject to the myriad of employment protection legislation. However just because you call them an ‘associate’ does not mean that they are not an employee – the law and HMRC will look at the true nature of the relationship.

As a general guide as to whether a worker is an employee or self-employed; if the answer is ‘Yes’ to all of the following questions, then the worker is probably an employee:

• Do they have to do the work themselves?
• Can someone tell them at any time what to do, where to carry out the work or when and how to do it?
• Can they work a set amount of hours?
• Can someone move them from task to task?
• Are they paid by the hour, week, or month?
• Can they get overtime pay or bonus payment?

If the answer is ‘Yes’ to all of the following questions, it will usually mean that the worker is self-employed:

• Can they hire someone to do the work or engage helpers at their own expense?
• Do they risk their own money?
• Do they provide the main items of equipment they need to do their job, not just the small tools that many employees provide for themselves?
• Do they agree to do a job for a fixed price regardless of how long the job may take?
• Can they decide what work to do, how and when to do the work and where to provide the services?
• Do they regularly work for a number of different people?
• Do they have to correct unsatisfactory work in their own time and at their own expense?

See the employment status indicator at: http://www.hmrc.gov.uk/calcs/esi.htm

Advantages

• Franchising offers you the opportunity to grow your business faster than would be the case if you had to train up your own employees and develop your own internal marketing, sales and distribution organisation.
• The use of your franchisee’s capital will grow your network more quickly than would be the case if you had to find the capital yourself.
• Franchising motivates the franchisee far beyond any typical employee incentive scheme, with the franchisee’s financial success being dependent on the success of your business.
• With your increased purchasing power and possibly also reduced overheads resulting from a franchise network, you may be able to increase the profitability of small units.
• Studies have shown that you may be more likely to thrive in a recession than non-franchised businesses.

Disadvantages

• The major disadvantage is loss of control. Although the franchise agreement will impose substantial restrictions on franchisees, franchisees remain independent third parties who will be seeking to maximise their profits, sometimes at your expense.
• Part of your profit element is used in supporting the franchisee
• You will have to share substantial know-how and information concerning your business with the franchisee. Although the franchise agreement will contain confidentiality restrictions, such provisions are often difficult to monitor and enforce.
• The skills required to control franchisees and provide the back up support are different from those involved in operating a business through employees.
• The standardised approach required in franchising is not to every consumer’s taste!

Copyright (c) 123RF Stock Photos

The first legal question to consider when taking on an associate is whether they are actually an associate or whether in reality they are an employee. Just because you call them an associate does not mean that they are not an employee – the law and HMRC will look at the true nature of the relationship. This is very important because if the associate is actually an employee, you will be liable to pay Employer’s NICs and the ‘associate’ will have the benefit of extensive employment protection rights. We can advise you further on this.

Do check that an associate has in place any necessary insurance (eg professional indemnity insurance) before you engage them. Ask to see copies of the actual policies.

It is essential to have in place a robust legal agreement with your associate. This will protect you against such matters as the associate soliciting your clients, using your confidential information, you being liable for the acts of your associate and you being liable to pay any taxation. It will also set out the terms of your agreement clearly (such as fees, expenses, duties, termination rights and Intellectual Property rights) so that a legal dispute is much less likely.

Copyright (c) 123RF Stock Photos

On 1 March 2011, advertising regulation extended its remit to websites, Facebook and Twitter (and any other non-paid-for online space under your control such as other social networking sites).

The CAP Code says, amongst other things, that advertising should:

• be legal, decent, honest and truthful.
• be prepared with a sense of responsibility to consumers and society.
• respect the principles of fair competition generally accepted in business.
• not mislead by inaccuracy, ambiguity, exaggeration or otherwise

This means that not only must business owners check their own website to ensure that it complies with the CAP Code, but that anyone contributing to the Facebook page, blog or twitter (such as a Virtual Assistant) will need to be aware of, and comply with, the Code.

The CAP Code can be found here.

The Advertising Standards Authority is generally reactive in that it tends to deal with complaints received rather than actively reviewing marketing communications. This may influence the approach to compliance. However it is worth noting that the ASA’s sanctions are also being increased so that it can:

• Name and shame offenders, both on the ASA’s website and on paid-for advertisements on internet search engines which highlight continued non-compliance.
• Remove paid-for search advertisements that link directly to the non-compliant marketing communication on the advertiser’s own website or other non-paid-for space online under its control.

What is an unsolicited direct marketing email?

Under the regulations, electronic mail is any electronic message that consists of text, voice, sound or images – ie, email, text, picture, video, voicemail and answer phone messages.

Direct marketing is defined as a message that is trying to sell goods or services, or is promoting the values or beliefs of a particular organisation.

Unsolicited marketing is marketing that has not been specifically asked for.

If you want to use electronic mail to carry out unsolicited direct marketing, you need to comply with the rules in the Privacy and Electronic Communications Regulations and with the Data Protection Act 1998.

Are unsolicited direct marketing emails illegal?

The applicable regulations distinguish between an individual subscriber (eg amandasmith@hotmail.com) and a corporate subscriber (eg amandasmith@123ltd.com). However note that sole traders and individuals in partnerships are regarded as individual subscribers even if you are emailing them in their business capacity.

You can only carry out unsolicited direct marketing by email to individual subscribers if the individual you are sending the message to has given you their permission (known as an Opt In) OR you obtained his or her email details during the course of a sale (or negotiations towards the sale) and the email is relating to similar products or services that were the subject of such sale AND you give such individual subscriber the right to opt out of further emails (known as the “Soft Opt In”).

The prior consent rule does not apply to a corporate subscriber. However marketing emails should still identify the sender and provide a geographical address (see below).

Information to be provided before consent is given

If you are collecting contact details which include personal data (which could include the name of an individual in a corporate email address, such as amanda.smith@123ltd.com), certain information must be notified to the individual:

• your identity
  • the purpose(s) for which you are processing the individual’s data (eg to send them marketing email about products or services that they may be interested in) ; and
  • any further information which is necessary to make the processing of that individual’s data fair – ie be open and honest with individuals about how you are going to use their personal data.

This information should be given to the individuals or made readily available to them (for example in a link on your website) at the point of collection.

The best way to meet these requirements is through a privacy policy.

Information to be provided in all marketing emails

All marketing emails (even those where no personal data is used such as admin@123ltd.com) must clearly display your identity and your address and if you are registered as a company, you must also include the:

• company registration number;
• place of registration; and
• registered office address.

What is good practice?

The Information Commissioner has stated that, notwithstanding the legal requirements, good practice requires that marketers follow the guidelines set out below.

• Try to go for opt-in-based marketing as much as possible.
• Provide a statement of use when you collect details typically via a privacy policy).
• Make sure you clearly explain what individuals’ details will be used for.
• Do not have consent boxes already ticked.
  • Provide a simple and quick method for customers to opt out of marketing messages at no cost other than that of sending the message.
• Promptly comply with opt-out requests from everyone, not just those from individuals.
• Have a system in place to deal with complaints about unwanted marketing.
  • When you receive an opt-out request, suppress the individual or company details rather than deleting them so that you have a record of who not to contact.