Many people consider that online communication platforms such as YouTube and Facebook provide a light-hearted medium which has little or no legal risks or consequences. This, however, is not the case and if you are a communication professional using these social media platforms to promote a product or issue you need to know about consumer protection laws.
If you aren’t familiar with the relevant laws and you are not compliant (or where you are familiar with those laws and are still not compliant), you may not only find yourself in hot judicial waters, but you are also risking the integrity of your brand, corporate image and your own individual reputation, not to mention the wrath of the Australian Competition & Consumer Commission (ACCC), the supervising regulator.
Don’t let PR be misleading or deceptive
Sue Gilchrist, Partner, Freehills, told Frocomm’s 2010 New Media Summit that all online communication amounts to a representation subject to Section 52 of the Trade Practices Act 1974 (Cth) to the same extent as extent as in traditional media:
A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Sue urged communication professionals to remember your (or your client’s or employer’s) “intention is irrelevant”. Although it may seem obvious to you that it is a PR-generated testimonial, or that a blog contains somebody’s personal opinion, “not everyone is savvy” and you could be engaging in a misleading or deceptive communication.
Sue told the conference that if a case does proceed to court, there are a few things the court will consider in determining whether there has been misleading or deceptive conduct, including:
- the class of persons likely to be misled
- the standard of intelligence, astuteness or gullibility of this class, otherwise known as the ‘the reasonable person test’.
New media platforms and section 52
The court will also take into account other relevant factors, including the nature of new media formats and their potential audiences. For example, platforms such as YouTube are accessible by a very wide range of people which means that the class of persons who must be misled in relation to activities on such platforms is likely to include people of very different levels of astuteness or gullibility.
Since the court is likely to consider the position of the least astute and most gullible members of this class when determining whether consumers will be or are likely to be misled, activities in new media carry a particular risk of misleading at least some consumers.
It is therefore important to consider the full range of consumers who are likely to come into contact with your new media activities.
However, this is not to say that the emergence of new media has made it more difficult for communication professionals to adhere to section 52. The important thing to remember is that the same consumer protection rules apply to new media as they do to more traditional media. So communication professionals should take the same precautions to avoid misleading consumers in new media.
Indeed, activities on new media platforms may be comparable to national newspaper or TVC campaign in terms of their reach, scope and exposure to consumers of varying levels of astuteness.
Although some communication professionals may see section 52 as an obstacle to their creativity, it is important to remember that section 52 plays an important role in protecting consumers by helping to ensure that consumer-facing activities are not misleading or deceptive. Compliance with this principle will also help build consumer trust in a brand or its products. Your creative talent will be engaged even more in ensuring creativity and compliance.
The courts will generally allow a certain amount of “puffery” and creativity in communication designed to sell a product or promote a brand. Section 52 does not prevent communication professionals focussing on the positives of their brand or product.
What section 52 will do, however, is require that communications are balanced and, so, where communication focus so heavily on the positives that it risks misrepresenting the product and/or creating an overall impression that is potentially misleading, those positives may need to be limited and the negatives specifically disclosed.
What can communication professionals learn from Ian Turpie?
An example of a case which came to the attention of the ACCC was TV personality Ian Turpie’s spruiking of nasal spray for erectile dysfunction for the Advanced Medical Institute (AMI) back in 2004, despite him not suffering from this condition.
In addition to pursuing AMI and Mr Turpie, the ACCC can and will pursue individuals who have knowingly been involved and in this case also pursued the AMI advertising agent that drafted the advertisement. The Court held AMI, Mr Turpie and the advertising agent to have contravened the Trade Practices Act (and awarded costs against both AMI and the agent). The ACCC used this “decision as a warning to advertising agents who play an important role in the preparation and/or publication of advertisements on behalf of their clients.”
Misleading the public can damage your brand and your own reputation
Even if misleading and deceptive conduct does not result in legal action, misleading consumers can damage your brand and your own organisation. An example more specific to new media was the YouTube video of a girl’s romantic quest to find her “man in the jacket”, which turned out to be a company generated video used to promote Witchery’s new men’s line.
This was a campaign that was heavily criticised by the media, which were more than a little annoyed for taking the bait: “If the CEOs of Naked Communications and Witchery think that the media will forgive and forget being lied to, then the biggest joke is on them.”
The public also didn’t seem that impressed with being fooled by a girl whose apparent search for love took her all the way to The Today Show, the hosts asked her if it was a hoax, which she denied.
Witchery and Naked Communications, the agency responsible, are not the first or last to use social media in this way. But the commentary around the issue focused on the lack of remorse, and indeed arrogance, from Witchery and Naked once the deception came to light and this may have contributed to the campaign being received so negatively.
ACCC vs. Google - a world first
The ACCC is currently taking action in what is a world-first against Google Inc for allegedly deceptive conduct related to sponsored links on its websites. The ACCC says that Google claims to rank search results by relevance, but it actually engages in deceptive conduct by selling off the top positions to commercial partners. This case is currently being played out in the Federal Court.
What you need to know to stay out of trouble
In summary, if you want to achieve effective online communication, it pays to follow these basic rules as outlined by Sue:
- Where a communication is an advertisement, ensure clear disclosure that is it advertising
- Claims must be based on reliable and current information
- Take care that the overall impression is not misleading
- If engaging in comparative advertising:
- identify the scope and comparison
- undertake due diligence on the competitors product
- make sure relevant brands are protected.
Good luck! (And watch your back…)
So, the big question, dear reader, is have YOU been busted for being a naughty PR/public affairs pro? Please, do tell? Or do you have any tales of woe and warning to share? Don’t be shy, we won’t sue!
A full report on Frocomm’s 2010 New Media Summit, featuring leading Australian marketing, PR and social media pros and can be downloaded at Public relations and managing reputation).
