Your digital marketing is part of your business’s Intellectual Property and you need to protect it.

“Intellectual property (IP) and other intangible assets that relate to doing business include patents, trademarks, designs, and secret processes and formulae.”

This blog covers the following topics:

• How do I protect the ownership of my digital marketing?
• What is the impact of losing access to my digital marketing?
• If I lose access to my digital marketing, how to I get it back?

Digital Marketing is still a new frontier for most businesses. It can feel like it’s a big black box that is rapidly changing, which makes it hard to understand let alone master.

Most businesses, and especially small businesses, can feel that digital marketing is so complex they need to hand over everything to an expert, so they can focus on what they really love about their business.

But once you start working with a digital marketing agency or freelancer there is a risk you are handing over control of your business’s online identity and you might not get it back.

You might believe that you are always in control of your digital marketing but on parting ways with your marketer, you may discover that you neither have access to your marketing tools, the data they gathered or any way to recover them.  We’ve also found agencies and freelancers may not do the right thing once the “milk turns sour” and you want to get access to what you’ve paid for.

You’d hope these sort of circumstances were the exception, but sadly this isn’t the case. Businesses can lose access to their digital marketing when:

• Marketing agencies or freelancers close their business
• An exit clause in the contract states full ownership is retained by the agency or freelancer unless a fee is paid
• An internal employee leaves either at your business or at an agency without handing over ownership

Most of our clients have either lost access to their digital marketing tools or have failed to recover or safeguard them once they’ve parted ways.

Here are just some of the examples we’ve come across:

• Lost access to their domain as they got on the wrong side of their agency who shut everything down, ended up in court and they had to start again.
• Different employees had used so many different email addresses and passwords and not recorded them that they couldn’t fix their issues fast enough and had to start again.
• An agency was fired and on checking everything we found the agency was still connected to everything and logging in regularly!
• Freelancer refused to hand-over all the finished designs, despite all the invoices being paid, until the client paid an extra $5000 as the freelancer said they still owned the copyright.

How do I protect the ownership of my digital marketing?

You don’t want to be contemplating switching agencies or running a major marketing campaign only to find you can’t do anything as you are totally locked out of everything you need.

The best way to protect your business is to minimise your risk by maintaining ownership of all of your marketing tools. You need to retain the ability to add or remove people when you want so you maintain control of your marketing. You can also get a contract written for your marketing supplier which will give you legal leverage should the worst occur.

Almost every major marketing tool allows you to give access to someone else without handing over complete control. If you need someone to manage something for you, make sure you get them to set you up as the administrator and owner first! By all means, let someone help, just make sure it’s done safely and with you in control.

If you are engaging with someone who tries to lock you into a contract which removes your ownership of your marketing tools, or copyright ownership of anything they produce for you, keep looking unless there is a very compelling reason to use them. Always ensure you get any contracts fully reviewed by a legal expert to ensure that you are getting a benefit from the contract.

There are very few reasons why you should hand over the keys to your business, so unless someone can explain the reason to you clearly, don’t do it without getting advice first.

So, let’s just get the most important thing out there first:

• Do not share your passwords with anyone unless you have absolutely no other option.
• Change your password immediately afterwards.
• Don’t use the same password for everything.
• Switch on 2-factor authentication whenever possible.
• You can use a tool like LastPass to manage your passwords and share them safely.

You should be ensuring you have:

• Administrative rights: You will then have administrative control of all your marketing tools and can add and remove people yourself. You should have this for everything you possibly can (e.g Google Analytics, Facebook, etc.) and there are very few exceptions where this can’t be done. If the person you are working with can’t do it, move on, they obviously don’t know enough or aren’t going to do a good job.
• Login details: You have a username, password, and the web address of the tool so you can access it. You should have this for everything and don’t forget to store this information safely where you can get it, but others can’t.

What should you own the keys to?

• Your domain name
• Your website
• Your hosting – You should know where it is, but not necessarily have access
• Google Business and Bing Local
• Google Analytics
• Google Tag Manager
• Google Search Console (previously Webmaster Tools)
• Bing Webmaster Tools
• Google AdWords and Bing Ads
• Facebook, Instagram & other social media pages
• Facebook, Instagram & other social paid ad accounts
• Your sales data on your website
• Your customer email list on Mailchimp, Campaign monitor or other email marketing platforms

There are many other marketing platforms out there, but the principles remain the same.

If you are unsure of where you stand, you could get an independent consultant to review your marketing and advise you of how best to recover and protect yourself.

What is the impact of losing access to my digital marketing?

This really comes down to how much you have invested in your digital marketing and how many sales you make as a direct result of your website.

We’ll make the assumption that you are generating at least 50% of your sales through your digital marketing, either directly or due to your brand presence.

Your domain:

If you lose your domain, you may have lost your business. It can take months to legally recover your domain name and almost every aspect of your online business is tied to your domain. Your emails go to your domain, your website needs your domain, your ranking on search engines goes to your domain.

You can reconfigure your business around a new domain and get your emails and website back up quite easily, but all the equity you build around that domain will be damaged. Unless you have a dedicated team, prepare to spend a lot of time and money recovering.

You do have the option of approaching the AUDA. They were appointed by the Australian Government as the appropriate body to administer the .au domain space and can help recover your domain name. Bear in mind that whilst they have policies they can apply to assist you, you may still need legal advice or even go to court to settle the dispute.

Your website:

That’s okay, you’ve got a backup right? No?!?

If you don’t have a backup, you are going to need professional services trying to recover it. If your website is still live, but you have lost access, there is a chance you can recover it, and for an expensive website, this would be the most cost-effective solution.

Otherwise, be prepared to rebuild it from scratch.

Your website hosting:

You generally don’t have control over your hosting, and this can also include your emails. But if you need to make a change when you don’t have access to your email and your marketing team are MIA you may be in trouble.

You can try to prove ownership of your hosting and email to the 3rd party, and most have a process for doing this so it’s not quite so daunting, but you would generally be better off speaking to an expert.

At a minimum, know who you are hosted with. Almost all hosting is done by a 3rd party like VentraIP, WPEngine or GoDaddy. If the hosting isn’t with a major provider, and it’s very cheap, be very careful. Small operators can carry huge risks due to bad I.T. practices, lack of backups, not testing the backups, getting hacked or just going out of business. However, do your research or get advice from an expert; GoDaddy is a big name and can have low prices but has had numerous security issues and does not rank well for website speed or customer service.

Google Analytics:

Google Analytics is one of the most important marketing tools for your business and increases the longer you use it. As it captures information about every visitor to your website this can significantly affect your ability to evaluate the effectiveness of your marketing.

Imagine doing detailed surveys of your clients every month for a year, upon which you base your entire marketing strategy. If you lose that, what would be the impact? Google Analytics is worth 100 times this.

Paid Ads on Google, Bing, Facebook, Instagram, etc.:

If you are running paid Ads, all your ad designs and marketing data will be here. These accounts will tell you what was working, how much you were paying, where to optimise and most importantly who your target audience is.

Losing this data can put your marketing back to the beginning. Learning how to effectively market your business on Search Engines and Social Media can take months of testing and tuning. Once you factor in all the historical testing of dozens of campaigns and all the demographic data that comes with it, losing access to this could be devastating to your business.

Email database:

Before everything became digital, sales people had Rolodexes of contacts, filing cabinets with client records or little black books of phone numbers. These lists were the lifeblood of the salespeople and of the company so losing these records would be a catastrophe.

Your email database is more valuable than this.

Email is still one of the most powerful marketing tools when you use it to stay in touch with people who have willingly given their email to you. Those email addresses are from someone who has or probably will, buy from you in the future.

These emails may be in a marketing automation tool like Mailchimp or Campaign Monitor, so getting back ownership is as simple as contacting the platform and advising them of what has happened. You may need to provide information such as the payment method you used to pay for the service but software companies are used to people who have lost access to their accounts so they should have good processes in place to help.

Sales Data:

This one is self-explanatory.

No sales data, no way of contacting your customers. No way to do your forecasting. No way to judge which products are effective and which need to be reviewed. When you are running an e-commerce business, your sales data is what makes you a success and let you know if you are growing or need to re-evaluate.

If you lose your sales data, you’re in big trouble and will have to find some way to reach out to all your customers and get their information back into your system. Losing their data is probably something they’re not going to appreciate either.

How do I get my IP back?

First of all, you need to protect yourself legally. Unfortunately, this is also a new frontier from a legal perspective and finding a legal firm who is well-versed in digital law isn’t easy.

You may find that you are getting legal advice from someone who understands the laws around IP, but isn’t a digital expert. This could lead to delays or errors as they may not have specific insights into how digital platforms work to be able to put a solid case together.

First of all, you need to get any contracts reviewed to see if you have any protection. Contracts, and any Terms and Conditions to a lesser degree can help make your position clear.

There are a few law firms in Australia who are specialists in digital law, including Ian Aldridge the owner and founder of Progressive Legal in NSW.

He has the following advice for those who find themselves in the unfortunate position of getting into a dispute with their digital marketing service provider.

“You need to act fast!

Firstly, preserve any evidence by way of screenshots, saving copies of any documents that have been shared with you through onedrive/google-drive etc. and save as much as you can and if you can’t save it, take screenshots.

You may also then consider whether it’s necessary to lock them  out of various programs or documents which you have shared with them, change all passwords shared with them, lock them out of all social media accounts which they may have had access to, project management tools (if you can).

Speak to someone fast about what you need to be able to transfer the IP (e.g. if you have another developer or website hosting business) you may want to ask them what they need to transfer over urgently.

A lot will depend on what has happened with ownership but you must act swiftly and properly. Consult a lawyer that knows this area of law and can help you quickly to determine the best course of action legally. Also, consult an IT or digital marketing expert to help you obtain anything you need before they get wind that you’re going to leave as a lot of them simply lock everything down as soon as they suspect or you put them on notice of it.

This unregulated industry is unfortunately rife with people who hold clients “over a barrel” when push comes to shove. Sometimes it’s a misunderstanding. More often than not, it’s a result of poor communication and asymmetry of technical information and one-sided “take it or leave it” agreements which are heavily in favour of the provider of services – which most businesses don’t take the time to go through and amend in their favour.

You need someone to look at the terms of the agreement very quickly to work out what your legal options might be. You really have to be on the front-foot with this and treat time as being of the essence. Unfortunately, the legal process as it stands at the moment in Australia is often not fast enough to resolve disputes of this nature, which vitally need swift resolution so that a business can move on quickly to a new developer and not be hindered by IP being held-up by the old one.

All too often, a business will become embroiled in a dispute with a developer who has been paid all this money, holds all the IP to ransom and the business has to start over with a new developer and has to consider whether it’s worth pursuing the old developer to try and recoup the monies that they have paid, when it’s sure that they will fight tooth-and-nail to keep a hold of all monies paid.”

Wrapping it all up

I don’t want to be cynical about this, as there are lots of good people out there, but this is your business to protect and you need to do it properly or risk losing it.

It can’t be stressed strongly enough that the need to build a relationship with someone who has good references and that is willing to provide a commitment to release all your digital IP in the event that the two businesses part ways.

Sometimes it can be daunting trying to find someone who is reputable, trustworthy and cost-effective. Digital Marketing is a very rapidly growing sector, but this means more and more people with poor business practices or less than ideal standards are getting into the businesses resulting in more businesses getting ripped off.

If you want some legal advice, drop Ian a line and between us, we can do an audit and provide you with the advice you need to get your business properly protected.