As Vikki Chowney from Reputation Online pointed out in her presentation at the IAB seminar ‘How to be Safe and Social’ last week, there are two sides to being ‘Safe and Social’. Protecting the user from content which may offend, distress, harm or infect. And protecting the brand from user generated content which could impact their reputation or legal status.
The seminar turned out to have significant news about the latter, and set the Twittersphere chirping for a while. So, for the benefit of those not able to attend – and with a great big fat disclaimer that I’m not a lawyer, so this *is not* legal advice as such, here’s what went on.
Vikki Chowney’s warmer-upper took us through a rogue’s gallery of recent social media legal cases and pointed out a few landmark legal rulings.
Astroturfing. Astroturfing, for example, was made illegal in the UK in 2008 as an ‘unfair commercial practice’ (The Consumer Protection from Unfair Trading Regulations 2008). Someone should tell the tobacco industry.
Endorsement. In 2009 the US FTC published changes regarding testimonials and advertisements from celebrities and bloggers. From there on, all such endorsements via conventional, online or social media must contain a clear disclosure. The practice of endorsing brands on micro-blogging service Twitter is common in the US, where celebrities including rapper Snoop Dogg, actress Lindsey Lohan and Kim Kardashian earn thousands of dollars for posting tweets featuring endorsements. However, now the US Federal Trade Commission insists such tweets include the wards ‘ad’ or ‘spon’ to indicate the endorsement has been paid for, even if only in exchange for product.
And in the UK, following an investigation into the commercial blogging network, Handpicked Media, the Office of Fair Trading (OFT), which enforces consumer protection law, now insists that it must be clearly stated when promotional comments have been paid for, or were not actually written by the brand themselves. As Heather Clayton, senior director of OFT’s Consumer Group, said in regard to the Handpicked Media case:
“The integrity of information published online is crucial so that people can make informed decisions on how to spend their money. We expect online advertising and marketing campaigns to be transparent so consumers can clearly tell when blogs, posts and microblogs have been published in return for payment or payment in kind. We expect this to include promotions for products and services as well as editorial content.”
As to where the disclosure should be displayed, the OFT says only that it should: “clearly identify, in a manner prominently displayed with the editorial content such that it would be unavoidable to the average consumer, that the promotion has been paid for or otherwise remunerated.” For UK tweets, this may not necessarily be in the tweet itself, as is the case in the US. Stating that these are paid-for tweets in the profile is probably sufficient, but I don’t think this has yet been tested.
Libel. In the 2010 case of the cricketer Chris Cairns vs Lalit Modi, the liability for the spread of publication was under debate. Modi was accused of defaming Cairns in a tweet which was subsequently deleted from his stream, and Modi’s lawyers argued that the damage from the case would be so small as to be a waste of court time. But having been received by Modi’s followers, it was retweeted, and also screenshot and published in sports blogs, so the end readership would have been far in excess of Modi’s small number of followers. The judge in the case ruled that the case could go to court, and so allowed that a tweeter could be held responsible for the spread of their tweets beyond their immediately published realm.
Extension of the CAP code remit in the UK
Malcolm Phillips, Code Policy Manager at the Committee for Advertising Practice (CAP), announced the changes to the remit of the CAP code of advertising (first covered here) and provoked the minor tweeting stampede. Malcolm, and the next speaker, Senior Associate at Olswang Ashley Hurst, provided lots of examples and clarification of the potential impact of this change.
What is the change?
In response to a growing number of complaints (The Advertising Standards Authority received over 4,500 complaints since 2008 about online marketing), from March 1st 2011, the ASA’s online remit will:
“be extended to cover marketing communications on organisations’ own websites and in other non-paid-for space under their control. The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) will apply in full to marketing messages online, including the rules relating to misleading advertising, social responsibility and the protection of children.”
From March 1st 2011, instead of only to paid advertising, the CAP standards will apply to “advertisers’ own marketing messages on their own websites, regardless of sector, type of businesses or size of organisation. Marketing communications in other non-paid-for space under the advertiser’s control, such as social networking sites like Facebook and Twitter.”
In other words (Ashley’s) it will apply:
- To company websites and social media (including Facebook and Twitter)
- To UGC where adopted as part of marketing communications
- When the communication is intended to sell something
Here’s Ashley’s slide on the key features of the code: (you can download the full presentation from the IAB webpage here.)
Some useful take outs:
- Thanks to Share facilities such as ‘tweet this’ and ‘share this’, a website may now be considered as viral marketing.
- When tweeting prize promotions, be careful that the 140 character limit doesn’t make you take shortcuts which could potentially mislead consumers, such as not mentioning key promotion terms and conditions. For safety, it would seem advisable to always include a shortened link to a webpage which clearly states them.
- Although the CAP have been trying very hard to firm up the definitions, there are inevitably a lot of grey areas, highlighted in Ashley Hurst’s presentation:
As @lakey tweeted: “I think the ASA has just discovered about 40,000 different new shades of grey”.
The line between PR and marketing will be hard to draw. We do know however, that the enlarged remit will NOT apply to press releases, other PR material, editorial content, corporate reports, investor relations material, historical advertising (provided it’s not re-used for a new campaign).
The question of what previously published material falls under the new code is an interesting one. All material published on or after 1st March 2011 is obviously included. But so would be previously published material still utilised in a campaign or readily visible. However, Malcolm said that the ASA would take a commonsense approach to this – there is no need for brands to sanitise the deepest darkest pages of UGC on their sites.
How this applies to user generated contentis as follows: if the content is re-purposed for the brand’s marketing efforts, it will fall under the code, and be subject to the ‘legal, decent, honest and true’ yardstick, and – very importantly – fall subject to the strict guidelines which apply to alcohol, tobacco and prize promotions. It is UGC which seems to contain the most grey areas.
Photos on Facebook Fan Pages. For example, a Facebook Fan Page may contain photos posted by users and those posted by the brand, clearly separate, as seen here:
If the alcohol brand shown here had chosen to use the photo on the bottom right of the woman drinking and post it in their album at the top, that would probably fall foul of the CAP code which does not permit a brand to imply that alcohol can enhance attractiveness.
Comments or posts on Facebook Fan Pages. If a user posts an inaccurate claim for a product (let’s say “Zappo snacks are gluten-free!”), and the brand thanks the poster for their comment (thus demonstrating that they have seen it and endorse the statement), then this would contravene the code.
UGC endorsements: If a brand uses a claim sent in by a consumer: “Dentifrice Whitener made my teeth sparkle in 30 days! Jane Wallen, Hertfordshire” on their website, before publication they’d better have proof that Jane Whallen exists, that she wasn’t paid in any way to make this claim, that she wrote it herself and that her teeth were actually made whiter in 30 days.
Retweets of UGC. This caused the most alarm bells to ring. If you are RTing, you are re-purposing UGC for marketing purposes. If a brand re-tweets a consumer’s tweet of: “WOW! You can get X cereal at half price in Dooley’s Grocery Store today!” and Dooley’s grocery store ran out of stock yesterday – that is an offence under the code.
The reverse is not necessarily true. For example, if any branded messages are re-tweeted with additional comments from the follower, the ASA will not hold the brand accountable for the additional user generated content.
Moderating out negative comments. If all negative comments about a product are removed, leaving only the positive comments, this could also be seen as using UGC for the marketing purposes – so all the comments remaining should be screened against the code.
Up until now, the ASA has not received many complaints about social media. And it is questionable how the policing of such stringent measures could be carried out. The audiences raised fears that these new restrictions may be used by brands to wage war upon each other, rather than for consumer protection. As to what sanctions are applicable, these also are extended, though the penalties do not seem huge. From Malcolm Phillip’s presentation (download it here):
So what do we do? Well, from eModeration’s point of view, we need to take the enlarged remit into consideration when advising UK brands on their moderation guidelines, and we need to train our community managers to be aware, for example when retweeting.
The ASA themselves suggest the following ways to comply with the changes:
- designate someone to be responsible for ensuring your site complies with the rules
- sign up to CAP Services and take advantage of all the training and help on offer
- attend or watch webcasts of ASA’s and CAP’s training seminars on the new remit
The ASA has also created a Copy Advice website where you can see best practice examples and take advantage (at a cost) of their website audit service.
How will these changes affect your role, if you are a digital agency or a PR firm? Comments below please (which we promise we will not re-use for marketing purposes), or add them to the twitter conversation with the hashtag #iakuk.