Wednesday, March 11, 2015

Brand ownership of social media

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. - First Amendment to the U.S. Constitution
Constitution of the United States (© Tetra Images / Corbis)
The doctrine outlined in 1st Amendment to the Constitution prohibits the U.S. Congress and state legislatures from enacting laws that diminish the freedom of speech. Most Americans take that to mean that they can say almost anything they wish. Sadly, that is far from the truth. There are many restrictions placed on speech based on factuality, employment, and legal contracts. We may not make a false statement that harms the reputation of another person or brand. Such speech is known as defamation. Non-disclosure agreements (plentiful in the wine industry) also limit what one can say.

Luckily, freedom of expression and opinion are protected under the 1st Amendment. I can say that I don't like a wine or that a restaurant offered poor service during my dining experience. I firmly believe that a bad product review via social media is a brand's opportunity to turn a negative into a positive. When a brand chooses to attack or complain about a criticism, it is just creating more damage to themselves.

One apartment complex in Florida took its stance on speech restrictions and social media criticism to an entirely new level. According to an article on Consumerist.com, the Windermere Cay apartments placed a "social media addendum" in its tenant lease agreements. This non-disparagement clause also assigned copyright to "any and all written or photographic works regarding" the apartment to the owner. In short, tenants were forbidden from publishing negative reviews online, and any comments or photos posted could be altered or removed because the apartment management owned them. On top of all this, a $10,000 fine was written into the contract for the first breach of the agreement and an additional $5,000 per subsequent breaches. Oh, and the apartment owner was the arbiter of what constitutes acceptable use. Windermere Cay basically said its tenants may use social media, but only in certain ways, and if they didn't like how a tenant talked about them they'd be fined.

That is akin to a winery saying that it owns all photos and reviews of its wine online by consumers, and if they didn't like a review you'd owe them money. Can you imagine a winery fining consumers (or critics) for posting negative comments about its wine? All those Delectable and Instagram images could be controlled by the wineries. Any sub-90-point score could be removed from the Interwebs!

Luckily, wine reviews are generally determined to be a safe form of expression. Non-defamatory opinions are fair game. Critics, journalists, and plebeian bloggers can write freely about wines they buy or are provided with free of charge by a winery. So all is good in the wine writing world, right?

Well, some wine critics demand similar constraints on their content. The Wine Advocate declares its reviews/scores as intellectual property that it owns. Not really that outrageous of a concept. However, if you are a commercial user that is involved in the sale or distribution of wine, Wine Advocate requires a commercial subscription agreement for you to use their content. If you use their content beyond what is specifically permitted in the agreement they may terminate your subscription and sue you.

I understand that no one likes to be criticized, but in this age of every single person on the planet being able to express their thoughts (however stupid they may be) and opinions to the rest of the world, is it really in a brand's best interest to bully and threaten others to make themselves appear better via social media? I guess we really are just living on a global playground...


  1. "Luckily, freedom of expression and opinion are protected under the 1st Amendment. I can say that I don't like a wine or that a restaurant offered poor service during my dining experience."

    Kyle, a legal distinction needs to me made here.

    Political speech is free.

    But not commercial speech.

    As a blogger, you can be sued for defamation. Read on . . .

    From The Wall Street Journal “Personal Journal” Section
    (May 21, 2009, Page D1ff):

    “Bloggers, Beware: What You Write Can Get You Sued”

    Link: http://online.wsj.com/article/SB124287328648142113.html

    By M.P. McQueen
    Staff Reporter

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