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Viral marketing - Legal Decent Honest & Truthful?

Sprecher Grier & Halberstam (Social Media Portal) - 29 March 2007

Viral marketing - Legal Decent Honest & Truthful?

Simon Halberstam looks at how viral marketers may fall foul of the law, and the Advertising Standards Authority (ASA) Code and trading standards requirements

If youíre a marketer, the whole viral marketing phenomenon is highly attractive. There are many that still believe that you produce your viral ad on a shoe string budget, put it out there on the web and then your viewing public will then "pass it on" until tens of thousands or maybe millions of recipients have seen it. As a marketer you benefit from the word of mouth recommendation, you save on expensive TV or press campaigns, and you penetrate deep into your target market (fingers crossed). Photograph Simon Halberstam, Partner, Sprecher Grier Halberstam

 Having said that, if youíre selling soap powder, your adís hardly likely to go viral unless itís really funny, completely unique, or all done in the worst possible taste. There are a lot of virals out there, and you have to make yours stand out from the rest. What seems to be a good technique is to down-play the brand in favour of the message. You may want to keep quiet that itís your companyís viral at all and make it seem like your viral was produced by a teenager in his or her bedroom.

The interesting consequence of this style of viral marketing when compared to traditional advertising mediums is that once your viral is out there, you lose control over it; who will see it, when and whether someone will tweak it before passing it on (now known as spoofing or indeed mash-ups). The whole idea of virals is that they represent a somewhat subversive style of communication. If anything as a marketer you are aping that underground approach so you can hardly complain if someone changes your viral and then forwards it on again.

In other words, the viral you put up on the web may not exactly be that tasteful in the first place, but someone somewhere might tweak it to make it more funny or tasteless before passing it on. If you donít like it, then you may have a serious problem.

Not so long ago, the infamous VW suicide bomber car ad. Volkswagen had nothing to do with producing the ad and understandably, were not amused. Even if your product has not been hijacked in that way, you should remember that your viral could be out there a long time. This is the morning after the night before effect; it might have seemed funny at the time, but as your brand changes, your viral, like an unpleasant smell, might linger.

So what are the limitations, the standards to which viral marketers must conform? Some of the major UK digital agencies have signed up to a declaration from the
Institute of Practitioners in Advertising (IPA) outlining best practice for
viral ad campaigns. It is hoped that by self-regulation, they will stave off a clampdown from the Advertising Standards Authority (ASA).

The declaration states that signatories will not create or distribute offensive or distressing material and will, as in the film industry, give users advance warning about the contents of viral material.

The ASA in the United Kingdom uses exactly the same guidelines for web material as it does for television adverts. The ASAís code covers a whole range of issues, such as misleading adverts finance and investments but more significantly in this case, offence.

The code states that advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards, or offend against public feeling. In practice that is going to come down to the portrayal of death, cruelty and violence, respect for the interests and dignity of minorities, respect for spiritual beliefs as well as sex and nudity, and the use of offensive language.

Reports indicate that the ASA has received hardly any complaints regarding viral marketing, so far, but that is probably because by the very nature of viral ads no one knows really who produced them.  Perhaps as well people are more tolerant of virals they get in their email in-boxes which a friend has sent to them as opposed to things they watch on the TV. However as the use of virals increases; itís fair to assume that the public will become more ready to complain to the ASA.

The ASA's non-broadcast Committee on Advertising Practice has been
Contemplating the application of its code to cover viral advertising, making advertisers liable for complaints.

There is also a plethora of Acts and Regulations imposing penalties for misleading advertisements and the mis-selling of products and viral advertisers have to stay aware of those provisions just as much as regular advertisers. For example if you look at Trading Standards for selling on the net they will refer you The Consumer Protection (Distance Selling) Regulations 2000, the Electronic Commerce (EC Directive) Regulations 2002 amongst others. Failure to comply could lead to a claim for damages, invalidate an online contract or land you in Court with an injunction against you. It would be very unwise to operate in ignorance of the legal framework. Virals are probably best for raising your profile, but not always selling products directly.

The bottom line is that you may not fall foul of the law if your viral is not legal decent honest and truthful, but your consumers may turn on you if you play fast and lose with these tried and tested rules. People donít like being duped. Innovate certainly, surprise and entertain, but donít ride rough-shod over the existing framework of regulation.

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