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Fake comments or reviews on social media and blogs are quite common especially in the fashion sector, but their practice might lead to potential legal issues and liabilities.
Flogs and fake social media comments
It is usually called “opinion advertising” and it is the practice of giving an opinion, publishing a comment on social media or – especially in the case of fashion blogs (the so called “flogs“) – posting pictures that are meant to drive readers to like a specific brand. Bloggers are very well respected in the fashion industry and in some cases are able to determine the success or failure of a specific product or trend.
But also athletes are becoming advertising icons and it is well known the case of the English football player, Wayne Rooney, that used his Twitter feed to mention his sponsor by passing off a promotional message as a personal comment without clearly showing it was an advertisement.
Following a complaint to the UK Advertising Standards Agency, the authority held that
the tweets were not obviously identifiable as marketing on behalf of the sponsor and therefore breached the code.
Rooney has now been banned from repeating the messages in his current form and his sponsor has been warned about ensuring all Twitter advertising is easily identifiable.
What legal concerns can derive from this activity?
The precedent involving Rooney shows that an attempt by authorities to extend their jurisdiction also to the Internet and in particular social media and blogs. The reference to brands and their products is acceptable – within the limits prescribed by intellectual property law and provided that the claim cannot hamper the reputation of a brand/company – if the pictures and opinions express the true point of view and taste of the individual.
But if they result from an advertising, sponsorship or any other type of an agreement between the individual (i.e. the blogger or the popular person) and the brand and the advertising purpose of the blog post is not clearly recognizable by the readers, the risk is that the practice is challenged as misleading advertising or better unfair commercial practice.
Indeed, authorities might argue that readers have been deceived in their preferences by the articles, feeds or comments which were not fully transparent as to their advertising purpose. Transparency is the main principle behind regulations on misleading advertising and unfair commercial practices that provide in Italy fines up to € 5,000,000. And it is also reflected in advertising self-regulatory regulations which do not provide fines, but are much faster and effective of legal measures in some cases since a decision can be issued in a few days.
Also, in the case of videos published on blogs and social media showing branded products, the issue is whether this might fall under product placement regulations (as discussed the this blog post) and therefore require to comply with the level of disclosure prescribed by applicable laws.
What shall blogs and public individuals do?
Shall bloggers or public individuals expressly disclose in a clear visible manner the basis on which a blog post, a feed or a comment has been published in order to fully acknowledge readers on the fact that their view is not a fully independent opinion? Can this disclaimer be placed in the Ts&Cs or in case of social media be implied through an hashtag or shall be more visible?
Since the matter has only recently attracted the interest of regulators, there is no official position on the topic. It may be also argued that readers might assume or easily guess about the arrangements behind a blog post or a comment on social media. And therefore no need of further transparency is required. For this purpose, an interesting point is also the qualification of the agreements between bloggers/public individuals and the promoted brands that is currently very unregulated.
