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So far in 2007 we have not had a flogging scandal, but there are almost certainly a few floggers in online communities surreptitiously selling their wares. “Flog” is reporter Tom Seibert’s contribution to our burgeoning internet lexicon and it describes a fake blog that holds itself out as being written by a consumer when in fact it is created by marketing or public relations professionals to promote commercial products or services. Sony created one for its PSP and was exposed and ridiculed for it before Christmas. Wal-Mart has suffered the same experience. The risk of exposure and negative publicity alone may be sufficient to put you off engaging in this particular form of online public relations but if it does not then legislation on its way from Europe may just act as a further disincentive.
The dry sounding Unfair Commercial Practices Directive will be implemented into UK legislation by the end of the year and will impact across the marketing services sector. The UK is still drafting its version of the legislation but amongst the activities that will certainly be prohibited is a business falsely representing itself as a consumer. Flogs or fake postings to newsgroups will certainly fall foul of this prohibition.
The UK legislation containing this prohibition will be enforced by the Trading Standards Authority. They will have the power to seek undertakings from transgressors or, as a last resort, to pursue them through the Courts to seek injunctions. Some prohibited practices will be criminalised. It is not yet clear where criminal penalties will lie but it is unlikely that this particular prohibition would attract such a draconian punishment. Nevertheless, in the early years of the new legislation we can expect civil Court proceedings to be instigated by the Trading Standards Authority in order to clarify the scope of the legislation. Such proceedings will not only cause bad publicity but could be costly for defendants.
The Directive will expand the responsibilities of the Trading Standards Authority but as yet no additional funding has been announced to enable that authority to police the new legislation. Nevertheless it certainly raises a number of new considerations for marketers keen to avoid any censure and we will focus on other interesting issues in future early warnings. Nicola McCormick
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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