July 6, 2010
Law
Social studies
Originally published in NZ Marketing March-April 2010, page 102
An embellished facebook tale that raises some interesting legal issues for marketers hoping to join forces with social networks
In 2007, Facebook came up with a cunning plan to make money and, with a select group of partners, including movie rental store Blockbuster, launched a programme called Beacon to its US members.
Beacon worked something like this: you go to Blockbuster’s website to hire a video and you’re asked to enter, among other things, your Facebook account details. As soon as you’ve hired the movie, the following pops up briefly on your screen: Hi, we are going to tell your Facebook friends that you hired this movie unless you click here to opt-out.
You start sweating and scramble madly for the mouse. Too late. Your 10,000 ‘friends’ receive the following Facebook update: Hi, Dan Winfield just hired Debbie Does Dallas at Blockbuster.com. It’s a great movie and he thought you might want to know.
Facebook, in conjunction with Blockbuster, launched an opt-out programme called Beacon in 2007. It was pulled after a backlash from users who felt it breached their privacy.
I didn’t want them to know. But can you see where this is going? People sued Facebook and Blockbuster in the US claiming Beacon breached their privacy, falsely suggested they endorsed the chosen movie and rode on their reputation with their ‘friends’.
As the backlash grew, Facebook pulled Beacon. It has now launched Beacon II with an ‘opt-in’ rather than ‘opt-out’ function.
If you’re looking to partner with a social network, it is important you’re comfortable with the way the marketing will work. Don’t be seduced by the ‘broad idea’. Beacon was a good idea; the problem was how it worked. So here are a few things to think about before you launch your own cunning scheme.
It’s against the law in New Zealand to claim your product is endorsed by someone when it isn’t
It doesn’t matter if the person is famous or not. And it doesn’t matter if your claim doesn’t do any damage to the person’s reputation.
Use an ‘opt-in’ function to legitimise releasing personal information
Do not use an ‘opt-out’ function (the fact I hired Debbie Does Dallas was personal information). While using an opt-in may be less attractive, the backlash if you get it wrong with an opt-out is pretty unattractive too.
You cannot vet a person’s list of friends
This means you need to be particularly careful with how you tap into social networks when you are marketing products such as alcohol, ‘treat’ foods or therapeutic goods. There are fairly strict rules about who you can market these products to and what you can say in that marketing. Often a network of friends will include people overseas so restrictions on marketing in the friend’s country may also apply.
Famous people expect to be paid for endorsements
So before you mention Tiger Woods in your marketing, ask yourself: ‘Can we afford the licence fee he would be entitled to?’ Tiger’s fee may be less since ‘Tigergate’, but it’s still going to be a lot. And some celebrities, like Kate Moss, actually go up in market value after a scandal.
Sending unsolicited electronic mail can be against the law here
Members of social networks can send unsolicited mail to their friends because it can be inferred that their friends wanted to hear from them by accepting ‘friend’ status. But a company tapping into a member’s network of friends is unlikely to be able to rely on the same ‘inferred consent’ defence.
So if you want 2010 to be one step closer to hassle-free, follow this simple mantra: ‘treat people’s private information and reputation as theirs to use’.