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Advertising, Promotion, Social Media and the Law

The Competition and Markets Authority (CMA) completed a consultation in June 2015 on online reviews and endorsements, and whether marketeers’ use of them breached relevant law. One of the startling points about the consultation document was the breadth of the definition of “review site” used by the CMA. Whereas one might have assumed that the term “review site” covered sites such as TripAdvisor, where reviewing is the predominant point of the site, or like Amazon where reviews fulfil an essential subsidiary function, the CMA considered any site where any form of customer endorsement or testimonial is posted, as being a review site.

Particular areas of concern are:

  • Businesses writing or commissioning fake positive reviews about themselves.
  • Businesses or individuals writing or commissioning fake negative reviews of other businesses.
  • Review sites “cherry picking” positive reviews or suppressing negative reviews.
  • Review sites moderating negative reviews in a different way from how they moderate positive reviews; for example, not publishing a negative review but instead pushing the parties concerned towards resolving the specific issue.

All of the above may give rise to criminal charges under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and breaches of the Advertising Standards Codes.

Bloggers (including micro-bloggers, such as celebrities who use Twitter) are also caught by the rules. If any reward, whether in cash or otherwise, has been given to someone in order to promote a product or service, that has to be made clear. For example, a tweet containing paid for material should use the hashtag #ad.

The CMA consultation proved the opening shot in a wider campaign and the CMA is currently taking enforcement action against a number of businesses engaged in writing fake reviews for clients or promoting businesses online without making clear the difference between advertising and editorial material.

Susan Hall, a partner in the Intellectual Property Team, said, “It is essential anyone using social media for marketing purposes takes care to stay within the rules. The CMA website offers general guidance in the form of open letters issued to marketing departments, marketing agencies and their clients and to online publishers and bloggers. That is a very good starting point, but anyone with specific concerns about a campaign really needs to take legal advice.