There is no doubt that in 2011 Social Media, in the form of blogs, Twitter, Facebook and YouTube (amongst others) is the new ‘frontier’ and ‘brave new world’ of immediate, real-time communication, and is often the ‘preferred’ means of communication for the majority of us in 2011, not only at a personal level, but increasingly on a business level. We fail to recognise this at our peril.
What (if any) rules operate in this ‘brave new world’?
My suggestion, and I would welcome your thoughts, is that from a legal perspective many of the current consumer protection laws and industry regulatory measures apply in this new cyber-space, just as they have done to date in the more traditional ‘old world’ of 20th Century print and broadcast media space.
I have had a couple of questions put to me of late which illustrate my point, and I would like to share one of them with you for starters, to see what you think.
What do we make of ‘fake reviews’ (good or bad)?
Is there really a ‘grey foggy area’ or is there in fact a ‘clear blue line’ between what is plainly and simply the bad lands of misleading and deceptive B2C and B2B activity, as opposed to the 'good lands' of genuine free-speech encouraging open and honest B2C and B2B comment and opinion?
My suggestion is that while some might seek a grey fog of confusion for vested interests, the reality is that there is in fact a ‘clear blue line’, and that if social media is to continue to push forward as the new frontier media for both personal and business communications, we need to understand that although we may have fresh powder snow before us in which to make fresh new tracks, we will ignore at our peril the basic safety rules which we already know and understand, about where and how to ski without creating and avalanche!
Let me stick my neck out, and feel free to chop it off or at least have me pull my head in, if you think I am missing something.
On a range of legal and industry self-regulatory levels, SEO strategies designed to generate ‘fake’ comment and opinion are, in my opinion, simply BAD, and likely to be regarded not merely as contrary to existing Advertising Standards Authority self-regulatory industry codes, but also potentially in breach of laws relating to unfair trading.
The new ASA regulations, which extend existing print and broadcast media advertising standards and code to the world of cyber-space / social media communications and networks, are actually very plain and simple, and in my view will be interpreted (or if necessary extended) to apply to social media, to the extent that social media (and those who engage in it) do so for the primary or even secondary purpose of business marketing and development.
The CAP Code
Let me finish my guest post by simply quoting from some of what I consider to be key, relevant Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing Code of conduct (CAP Code) principles and rules. Let me also suggest that it would be a grave error on the part of anyone to try and distinguish references in the Code to ‘e-mails’ etc., and think that the media of Facebook, Twitter, blog etc., fall outside the letter, or at least spirit, of the Code, to the extent that they are being used for business marketing and development!
I have underlined words which I think render ‘FAKE’ social media content (however it is generated), together with those who knowingly generate or publish it, contrary to both the letter and spirit of the CAP Code, and likely to get you into trouble.
Principle: The central principle for all marketing communications is that they should be legal, decent, honest and truthful. All marketing communications should be prepared with a sense of responsibility to consumers and society and should reflect the spirit, not merely the letter, of the Code.
1.1 Marketing communications should be legal, decent, honest and truthful. I find it interesting that this is repeated and placed as RULE 1!;
2.1 Marketing communications must be obviously identifiable as such;
2.2 Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them;
2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context;
2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them ‘advertisement feature’;
3.1 Marketing communications must not materially mislead or be likely to do so;
3.2 Marketing communications must not mislead the consumer by omitting material information…..Material information is information that the consumer needs to make informed decisions in relation to a product;
3.3 Marketing communications must not materially mislead by omitting the identity of the marketer;….and note that the law requires identification in certain instances;
3.4 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims;
3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it; and
3.46 Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer.
I’ve probably batted on far too long for a blog post, but to open a genuine industry dialogue and debate about all this, (and I think it is timely to do so) I thought it would help to quote directly from the ‘horse's mouth’ (i.e. the CAP Code) and see what your thoughts are.
Don’t get me wrong, I am all for breaking new ground, opening up and pursuing sound business communications, which help both good businesses and genuine consumers to live in a better and more productive world. My concern as a lawyer is that I can see the risks of avalanches, and the need on both sides of the coin, for us to think first before we head off down the ski-slope! Let me know what you think.