Marketing Liabilities Uncovered

As a marketer, we’re always looking for new, improved and innovative ways to engage consumers and deliver the best results for our client brands. And with the rapid pace of technology and shift in consumer behavior over the years, we have been able to explore communication and engagement opportunities in the mobile, digital and even live/experiential space. But with these new platforms for contact and creativity comes responsibility, and if one is not careful, litigation can ensue. Let’s take a look at some of the most pressing liability issues regarding marketing campaigns today.

CAN-SPAM

Many consumers find unsolicited email and text messages– also known as spam – annoying, time-consuming costly and intrusive. In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act to curb spam (FFC, 2011)

The ban took effect in 2005, allowing the FCC to create very strict rules when it comes to text message marketing under the CAN-SPAM rules. Under these rules, you can only send text messages to people that give you consent to receive messages. You must also stop sending messages to anyone who unsubscribes from your text message marketing services.

So with CAN-SPAM in place, why aren’t there more CAN-SPAM lawsuits and why does it strike fear in the hearts of marketers? Several reasons contribute to this, but the two most significant reasons beings the CAN-SPAM laws are outlined in such a way that it teaches the entity how to spam (rather than outlawing spam), compounded by the fact that anti-spam lawsuits are difficult to prosecute and win. The evidence in such suits is very technical — mail headers, WHOIS data, traceroutes, ASN numbers, affiliate codes and HTTP redirections that tie a sender to a particular message, or more likely, a thousand messages.

Case in point - Kleffman v. Vonage Holdings Corp

In this case, VOIP provider Vonage surprisingly won a lawsuit when a California judge threw out a lawsuit alleging CAN- SPAM violations when it sent emails from multiple, unrelated domains (in order to bypass Spam filters). The decision ruled that sending unsolicited advertisement emails using multiple domain names was not unlawful under California Business and Professions Code section 17529.5, subdivision (a)(2), which made it unlawful to advertise in a commercial Email advertisement that contained or was accompanied by falsified, misrepresented, or forged header information (Wikipedia, 2010). What this means is, sadly, Vonage was well within its legal rights to send unsuspecting consumers emails designed in any way imaginable to bypass spam filters. However, this precedent doesn’t provide marketers carte blanche to send emails from anywhere to anyone, rather, I think it highlights some of the glaring holes within the law which will eventually be repaired, making our communication activities even more restrictive.

MARKETING TO CHILDREN

Another marketing hot button is a matter of ethical integrity – should marketers bombard children, a populations that cannot decipher between deceptive and truthful marketing messages, with advertisements? Monet Parham doesn’t think so. In Parham v. McDonald’s Corp., the plaintiff is alleging that McDonald’s Happy Meal ads are inherently deceptive because persuade children to bombard their parents with requests for unhealthy food, thus exacerbating "a super-sized health crisis in California." Parham says she purchases Happy Meals for her children only because they relentlessly demand them after seeing ads for the featured toys (Inside Counsel, 2010).

Since the filing of the lawsuit, McDonald's has been taking a lot of heat from parents, consumer groups and local lawmakers over the nutritional content in addition to the marketing of its Happy Meals. Recently, the fast food giant said it would start making the changes to its Happy Meal menu, which would include fewer fries and see the addition of apples. This move is seen as a preemptive tactic after San Francisco and nearby Santa Clara County, California, passed laws that would curb free toy giveaways with kids' meals that did not meet nutritional requirements.

The moral of the story here is know your market. While you may be creating products for children, parents are those ones who buy. And those who control the money, have the power. Do no harm and do not exploit children’s feelings in exchange for profits.

CYBERSTALKING

This is a very interesting and treacherous path as we begin to explore digital storytelling and transmedia marketing campaigns in marketing. "In 2009, Amber Duick sued Toyota over its intrusive “Your Other You” Matrix campaign, after she began receiving frightening e-mails over a number of days from a strange man. The man, who had her home address, told her he was on the lam from the law and needed to crash at her place for a bit to hide out with his pit bull, Trigger," (Wired, 2011).

"The campaign was aimed at 20-something males because the company’s advertising firm, Saatchi & Saatchi LA, determined that the demographic loves to punk their friends. Ads in print, online and on billboards drove traffic to the YourOtherYou web site where people could enter the name and details of someone they wanted to punk with the campaign. The person could choose one of five fictional characters – among them a heavy metal fanatic and a soccer hooligan — who would barrage the designated friend with text messages, phone calls, e-mails and videos for five days,"(Wired, 2011).

Duick didn’t find the stunt funny, and sued Toyota and Saatchi & Saatchi and fifty individuals associated with the campaign for intentional infliction of emotional distress; unfair, unlawful, and deceptive trade practices; and negligent misrepresentation, seeking $10 million in compensatory damages. Duick v. Toyota Motor Sales, USA, Inc. has yet to be adjudicated, but in the court of public opinion, it raises questions of marketing opprobrium v. basic human civility and privacy.