Companies wonder: Is online information a legal trap?
Advertising is about communicating with the public. Getting across a message that’s been well-crafted, molded and reshaped to deliver that just-so message about the merits of a product or service.
This was straightforward enough when the media world offered only a one-way channel, when messages were piped from corporations to the general populace.
But now the Internet has made corporate communication an information Web. And things have become a bit complicated.
Forget the attacks that go on in newsgroups such as alt.destroy.microsoft, or spamming episodes that call for widespread, grassroots bashing of a particular company (Boycott McDonalds!). Forget about misreported events “leaked” to so-called cyberjournalists. The real risk to corporate entities on the Web may come from behind the firewalls–from the corporations themselves.
Take the case of a major Asian car maker, whose agency is based in Los Angeles. The automaker launched a splashy Web site that targeted consumers; it featured news and information, along with a members-only area. The site was a qualified success; so based on its experience in the U.S., this same automaker began expanding its Web presence overseas, serving up sites that were locally targeted. It also began including international links on all its sites.
However, as most people by now know, it doesn’t matter where a site is physically located: it is still accessible by anyone, anywhere, with a modem and a phone line. Over time, consumers in the U.S. began obtaining information about the product from foreign sites. Fearing lawsuit frenzy from American consumers who might take Web site verbiage permissible in other countries and use it to counter American messages, the Asian car company removed direct links to its international sites from the U.S. site. The problem hasn’t been eliminated altogether, but at least the company no longer points surfers right to potential problems.
“If there is no truth-in-advertising [regulation] in XYZ country and you put a message on the Net there, and consumers read it and rely on it–I would be extremely cautious,” says Skip McGovern, associate counsel at agency holding company Omnicom and chairman of the legal affairs committee at the American Association of Advertising Agencies. McGovern warns that messages that don’t pass so-called “substantiation” scrutiny are susceptible to being taken as a warranty claim on a product.
Levi Strauss & Co., which launched its own site with a global target from the start, sidesteps the issue with a company goal to consolidate all messages to the public.
“In the age we’re living in, it’s naive to think of putting out a message to one audience without it spilling over into another,” notes Brad Williams, marketing manager at Levi Strauss. Levi’s site opens with an option for users to enter areas with product information and positioning claims based on where users are logged on. The language does vary slightly for local flavor, but Levi’s top-line message is consistent in all regions.
Meanwhile, an overabundance of information is still available from many businesses online, particularly now that corporate and business-to-business sites have become the norm. Press release information, which might, for example, discuss how products are being positioned before the public, is being reconsidered by some corporate attorneys who see that as potentially litigatable material.
“We recommend different gateways,” says Jonathan Anastas, vice president, account director, at Think New Ideas in Los Angeles.
“The way an agency speaks to the press is not the way an agency speaks to consumers,” observes Dean Van Eimeren, creative director, design and interactive media group at Torrance, Calif.-based Saatchi & Saatchi Pacific.
Adds a Toyota spokeswoman, “Press releases are directed to the media, which takes what parts it thinks are appropriate to share. Besides, [press releases] are set up with names and numbers on them–these are people who should not be getting 1-800 calls from consumers.”
Releases are also notorious for qualitative statements, often made in the form of quotes that feature superlatives such as “greatest” and “best ever” that run the risk of being held as a statement of fact, some say.
McGovern argues such comments are considered self-evaluative, have always been a part of press relations, and have passed legal scrutiny on most occasions.
No governing body, including the Federal Trade Commission, has made any ruling on such a matter yet. For now, most agencies and advertisers are taking a wait-and-see approach.
The FTC, for its part, is awaiting a case before making a public statement on Internet communication that isn’t explicitly advertising. But the Commission has instituted “Surf Days,” during which staff members and states’ attorneys general troll the Web for substantiated messages online.
As for formal policies, truth-in-advertising regulations may be the closest existing guidelines that currently apply, requiring companies to be able to back up claims. Commissioner Roscoe Starek hinted at a policy in a speech last fall called “Regulatory Enforcement of Your Web site: Who Will Be Watching?”
“You should ask, “Will consumers get it?” to figure out what claims consumers take from your advertising–whether expressly or implicitly made by the ad,” Starek said. “Don’t make the mistake of confining this inquiry just to the messages that you intend to communicate.”
McGovern takes such a blanket warning calmly, noting that he doesn’t expect international links or press releases to bring about any legal troubles for any of Omnicom’s clients.
But a number of companies have made it known in the interactive community that they take the threat of litigation–or at least embarrassment–very seriously.
Those most likely to be affected by such a threat are the agencies, whose mandate to focus all outgoing information is greatly complicated by new public access. Some predict the role of the agency may one day be broadened by the demand to control all communication being made available to the public.
As McGovern and others imply, it may take a lawsuit to bring about real changes in the way companies manage the rising tide of public information. “There hasn’t been a court ruling,” he says, but cautions, “It’s wise to be more conservative.
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