Mike Butcher - mbites

You're a PR or marketing company worried about social media and blogs? Hey, why not start posing as if you are a customer, extolling the benefits of your clients product! Better still, set up a fake blog and do it there!

Wrong!

Trevor Jeffords, Associate of law firm Eversheds, writes in their latest e80 newsletter:

"Under new laws in the UK, businesses will soon be prevented from "falsely representing oneself as a consumer", meaning that companies will no longer be able to post fake entries on blogs or message boards that imply they are made by customers. In light of the current Web 2.0 trend towards social networking sites that rely heavily on sharing of information and peer-reviews, consumer review websites (such as TripAdvisor) have increased the risk of abuse of this kind.

Such practices have previously been outlawed in the UK by the ASA in adjudications such as that involving talkSPORT radio in 2006 where a representative of the company placed a fake blog entry on a number of football club related sites. However the new law will mean that companies who continue to post fake statements risk facing both civil proceedings and criminal prosecution. The law will be enforced by the Office of Fair Trading and the Trading Standards Office who will have the power to apply for enforcement orders, orders for the disclosure of information and injunctions as well as being able to bring criminal prosecutions against an offending company.

The new law is part of the EU Directive on Unfair Business-to-Consumer Commercial Practices (2005/29/EC) aimed at obliging businesses not to mislead consumers. The exact date that this law will come into force is uncertain. The Directive states that member countries should apply measures enforcing its provisions by 12 December 2007, but the DTI has advised that Regulations implementing this Directive will come into force in the UK by April 2008. Companies should note that the Directive seems to create a strict liability because it will not be necessary to prove that there has been any actual loss or damage, that the company was negligent or that the company intended to commit an unfair commercial practice.

In the light of this new legislation, companies should ensure that they do not use fake blogs, message boards or other word-of-mouth campaigns as a marketing tool. It is important that they also inform employees not to post such statements because they could potentially be interpreted as having been made on behalf of the company."

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