In a case which generated unexpected but probably not too unwelcome publicity, film distributor Metrodome came under the regulatory cosh for encouraging visitors to its site promoting movie “Shifty” to “stitch up a mate” with a viral email. Oh dear. Phil Lee unstitches the facts.
Topic: Email marketing
Who: Advertising Standards Authority / Metrodome Group plc
When: 6 May 2009
Law stated as at: 6 May 2009
The Advertising Standards Authority ("ASA") has recently adjudicated on a viral advertising campaign which, to be honest, fell foul of just about every advertising and data privacy rule it possibly could.
The campaign was run by Metrodome Group plc ("Metrodome") and related to the forthcoming film "Shifty". Almost immediately upon its launch, the ASA received a complaint about this – wait for it – "shifty" advertising campaign, which ran as follows:
Visitors to the "Shifty" film website were invited to "stitch up a mate" and enter a friend's e-mail address (being assured that their own e-mail address would not be revealed to the friend). The friend was then sent a personalised (and very formal looking) e-mail from email@example.com which carried the subject "CRIMINAL INVESTIGATION" and included an investigation reference number with the recipient's name.
The e-mail was signed by the "London Community Drugs Team" and read:
"In a recent operation a subject was arrested with a quantity of class A drugs in their possession. During the post arrest interview the suspect supplied your name to us as a habitual narcotics user. As such you are now at risk of a criminal prosecution based on the information supplied.
However, as part of the Community Drugs Team initiative we are attempting to work with and help people who may have issues with drug use. Under this new initiative it may be possible to prevent further investigation if you are willing to participate in the newly launched ACT AGAINST DRUGS campaign, and submit to counselling and weekly drug testing. If you wish to participate please click on the link below to arrange a date, time and location for your initial interview and first weekly test [the website www.community-drugs-team.org.uk was given].
If you feel information has been wrongly supplied or wish to appeal against this notice click on the link below [the same website address was given]. If you fail to respond to this e-mail within 7 days of receipt please be aware that this will then become an official matter and there will be a strong likelihood of criminal investigation. It is our aim to help you in the most discreet way possible, however we will require your full co-operation."
Whilst visitors who followed the link to the website address were informed "You have just been stitched up by your friend", the e-mail itself did not make clear it was a hoax. You can't help but wonder: with friends like these, who needs enemies?
Following a complaint from someone who received the e-mail at work and was concerned it could threaten his employment, the ASA investigated on grounds that:
- the advertisement was distressing and irresponsible because it implied the recipient was a drug user under criminal investigation;
- the advertisement was misleading, because it purported to be an official communication and did not make clear it was simply marketing material; and
- recipients had not given explicit consent to receive the e-mail.
Sure enough, the ASA held that the advert was in breach of CAP Code clauses 2.2 (Principles), 7.1 (Truthfulness), 9.1 (Fear and distress), 22.1 (Recognising marketing communications and identifying marketers) and 43.4c (Database Practice).
Who would have guessed? In fact, perhaps the only surprising element to this whole saga is that Metrodome ran the campaign in this form in the first place.
Why this matters:
As regular marketinglaw readers will be aware, very specific rules apply to viral marketing campaigns (aside from the general advertising requirements of truthfulness, not causing fear or distress etc.). In general terms, CAP Code rule 43.4c requires advertisers to obtain the "explicit" consent of consumers to the sending of e-mail marketing communications.
Were this strict requirement, it would act as a barrier to any viral advertising campaign. However, the Information Commissioner's Office ("ICO") has issued guidance on what advertisers must do to run a compliant viral campaign in the absence of consent from the viral recipient. In summary, the guidance says:
- advertisers should get the individual instigating the viral communication to confirm that the recipient consents to the disclosure of his personal details for this purpose (e.g. by ticking a box to confirm this);
- advertisers should inform the viral recipient who it was that provided his details in the viral communication. The individual that instigated the sending of the viral should also be notified that the recipient will be given this information;
- advertisers should bear in mind that to incentivise individuals to provide a friend's details for viral marketing purposes (e.g. avoid saying things like "Win a prize if you enter your friend's e-mail address ") increases the risk of the advertiser being liable as "instigator" of the ensuing email to the friend;
- before sending the viral, advertisers must clear the recipient's details against their suppression lists and respect any recorded opt outs; and
- advertisers should not use the recipient's details for any purpose other than sending the viral (unless they have previously consented to those other purposes). Once the viral has been sent, the advertiser should not retain or otherwise use the recipient's details.
This adjudication serves to remind advertisers that they should look to the above steps to avoid falling foul of advertising regulation when planning viral campaigns. Advertisers who fail to take heed of this will undoubtedly incur the wrath of the ever-vigilant ASA (and maybe even ICO!).