Articles
UK: Swan Turton LLP eBulletin - New Controls over Commercial Blogging
07/02/2011
Handpicked Media Ltd, a blogging network which promotes the
activities of its clients through online content, has become the first
company to be subject to enforcement action by the Office of Fair
Trading (OFT) under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).
The OFT’s actions illustrate how the rise of blogging and social
networking sites has blurred the boundaries between consumer perceptions
of editorial content and advertising features.
Handpicked Media was asked to sign undertakings that it would cease
to continue the unfair conduct, having engaged with bloggers who
provided editorial coverage on behalf of Handpicked Media’s clients,
which was in turn published on a number of website blogs and social
networking sites such as Twitter. The OFT was concerned that Handpicked
Media did not make it sufficiently clear to consumers that the
promotions had been paid for.
A general duty not to trade unfairly was introduced by the CPRs which
came into force in 2008. The CPRs provide that a commercial practice is
unfair if it is a misleading omission.
It is also unfair to use editorial content in the media to promote a
product where a trader has paid for the promotion without making that
clear in the content or by images or sounds clearly identifiable to the
consumer.
The Handpicked media case emphasises that advertising and marketing
practices must disclose that they include paid-for promotions or risk
being considered deceptive under the CPRs. Similarly, a trader who
falsely represents himself as a consumer, by posting reviews on a
website which appear to the consumer to be written by a fellow consumer,
will also risk action under the CPRs.
The Handpicked Media case is significant in the light of current
developments in the European Parliament, which has recently adopted a resolution on the impact of advertising on consumer behaviour.
The resolution calls on the European Commission to take action on
hidden internet advertising on blogs, forums and social networks.
Concerns have been raised over the difficulty in distinguishing opinion
from advertising in the form of comments on blogs, forums and social
network sites. The European Parliament is concerned about the increase
in businesses paying for the dissemination of comments that appear to be
written by consumers.
The Handpicked Media case will be of interest to companies which use
third-party blogs and advertising to promote their products. Opaque
online marketing practices are on the authorities’ radar.
Charles Swan and James Wilson
Advertising & Marketing / Digital Media
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