Meerkat and Periscope – 'brand opportunity' or legal minefield?

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If you are a regular user of Twitter then you’ll undoubtedly have spotted a few people using Meerkat and Periscope apps to live stream content recently, and we blogged about some of both apps’ features just last month after Periscope’s launch.

 

 

These apps basically turn your smartphone into a mini live video broadcast which instantly appears in your followers’ Twitter streams and to other users of the apps. Currently both only available on iOS devices, at first glance this looks like a great platform for brands to jump into, but as many people have started to realise, it’s not really that straightforward!

More and more concern is being voiced over the last few days, as more brands get involved, that the age-old live broadcast issues, such as the lack of control over what random people are doing in the background of a shot, could be the least of a brand’s problems if it jumps into using these apps to broadcast branded content without considering wider implications first.
Is there music playing in the background? Is it copyrighted? Is there a random third party brand logo visible in the shot? Will that brand be happy to appear in your video that’s being used potentially for your own advertising/marketing purposes? If broadcasting on private property that doesn’t belong to you – do you have permission to film/broadcast? What about members of the public in frame who haven’t given consent for video of them to be used? It’s the easiest thing in the world to take a quick screenshot whilst using the app for ‘forever’ capture stills of a stream as these random screengrabs taken today within Periscope illustrate:
 

 

 
What if your broadcast includes footage of children? A celebrity who has no formal affiliation with your brand? A sporting or musical event which a broadcaster has already paid exclusive rights for? Someone wearing obviously branded clothing which isn’t the brand you’re marketing for?
Some of these are actual legal concerns under UK law and some are more moral or just common sense ones, but if you’re thinking of entering the world of live streaming video for promotional purposes on behalf of a brand, they’re all things that you should bear in mind. Even more so as Periscope currently leaves an archive of streams accessible online for up to 24 hours after the first broadcast, so it doesn’t have the ‘blink and you miss it’ clause that many brands could be hoping will protect them from a comeback.
We spoke to Adelphi Sports Law’s Paul Fletcher, intellectual property expert, to see if there were any significant legal issues that he felt that the use of these live video streaming apps could raise:
“There are several areas of real concern here for me and I can see a number of ways in which laws could easily, and probably unwittingly, be flouted by brands using these kinds of apps to broadcast live video ‘on-the-fly’. These include the potential disclosure of confidential information, breaches of privacy laws, advertising laws and endorsements, not to mention issues around defamation, content ownership and control.
The responsibility doesn’t fall entirely on brands and individuals using the apps though. The owners/creators of the apps could find themselves in hot water too if they don’t have appropriate terms and conditions, disclaimers and privacy policies in place which users have to agree to before they use the apps to broadcast anything.”
So is it really worth all of the effort? Of course, determining the long-term success of using these types of apps as part of your marketing efforts is some way off yet – and how much of the incredibly high engagement and viewing figures that people are reporting currently is down to the ‘novelty factor’ of the apps is impossible to calculate at the moment.
However, if more than fifty people tune in to watch and engage with our very own Rick Guttridge just making a cup of coffee like they did last week, then how much potential is there for brands to reach their target audience in a really engaging way using this type of platform and some great video content?
So our advice is get on board as soon as is realistically possible if it suits your brand image/messages and your target market are likely to be Meerkat and/or Periscope users – just plan your videos first, as you would any type of marketing activity.
If you’re tempted to do a spur-of-the-moment brand broadcast which involves anything other than just you… DON’T! Leave that for a non-branded account.
Know who is likely to appear in your broadcast before you do it and make sure they are on board before you press the broadcast button if any releases need to be signed etc.
Don’t miss out on what could be a great way to connect with your audience right now because of the fear of the unknown. Buckle in for the live video streaming app ride… however long it lasts!