Who owns your brand - you or your customers?

Any retailer that has survived the last 18 months has done very well and will be now looking at ways to attract more customers through their doors (both physical and virtual). With online sales continuing to rise, including social media elements into your online store is now seen as a "must-have". This may be a forum to allow shoppers to discuss their latest purchases or including an ability for consumers to leave reviews for particular products or stores.

Mary Portas has recently thrown her hat into the ring with the launch of a new website which enables the public to promote their favourite shops by leaving a review for them. While the terms & conditions make it clear that Mary's team will not pre-screen any reviews, they expressly reserve the right to remove material, no doubt to deal with unlawful content (e.g. libellous, defamatory or revealing confidential information) which may be reported to them using their "Report this Review" button.

While there can be no doubt that social media is is a powerful tool enabling brand owners to enlist the help of their fan base to do their marketing for them, giving your customers free rein with your brand is a risky business. Any brandowner contemplating the introduction of a social media element into their website should ensure they are aware of the potential risks, and have put in place strategies to deal with any issues as soon as they arise. In the virtual world, things move a lot faster and brand owners must be ready and prepared to tackle issues before they spiral into a legal and PR catastrophe...

Sounding off: the dangers of reviews and comment-based sites

Fashionista's attention has been drawn by Vicki Day of Pure Sauce to a growing desire in the UK for replicating the model of sites such as RetailDish.com, a US site which encourages fashion designers and sales reps to post details of which retail stores they have done good and bad business with. Some of the comments can get pretty catty indeed. One particularly choice example reads along the lines of alleging that "X should be locked up in jail or fed to the Hawaiian SHARKS...this woman is a criminal". No mincing words there then!

But is it legal to have such a website in the UK? Isn't this just an invitation for nightmare defamation claims?

The laws in the UK don't prevent sites from allowing posters to upload comments per se and such sites certainly can be very popular. Think for example of the success of electronic goods or restaurant review sites or even blogs which invite viewer responses. It is also worth remembering that there are potential defences to a defamation claim such as truth (although proving this may be another matter).

However things can certainly go wrong. Posts can be made which are defamatory or unlawful in other respects such as infringing of intellectual property rights. Whilst the poster is unlikely to be able to rest easy (and even the mask of anonymity won't help if a court order can require the website to disclose the poster's details) a website may still be able to find some protection in the UK provided it treads carefully and has done its homework. A website may, for example, be able to rely on defences in Electronic Commerce Regulations where it is only hosting such information and has not monitored, amended or had notice of the unlawful content. It is a tricky area however and much care is needed in the design of a website in order to understand the risks and ensure that it is set up and managed in a defence-friendly manner. It will also be essential to respond to complaints and take down content which is the subject of such complaints as soon as possible.

An alternative option is to monitor and amend content to ensure that it is toned down and no longer unlawful but this can be very risky if something is missed. Fashionista also thinks this can rather spoil the freedom of speech and spontaneous gossip fun of it all which attracts readers in the first place....