What does research tell us? What research is needed? Robert Sprague Assistant Professor University of Wyoming College of Business Connect. Public Relations & Social Media Conference University of Georgia Grady College October 19-20, 2007

So many issues. So little time. Employees fired for blogging Employers using Google to screen applicants Defamation and Reputation on the Internet Copyright violations on YouTube Bloggers as journalists Deep linking

Employees fired for blogging

Employers using Google to screen applicants

Defamation and Reputation on the Internet

Copyright violations on YouTube

Bloggers as journalists

Deep linking

Public Relations & Social Media Legal issues Commercial speech Deceptive trade practices Liability for content

Legal issues

Commercial speech

Deceptive trade practices

Liability for content

Commercial speech Commercial speech is granted limited constitutional protection Subject to regulation Time, place, and content What is commercial speech? Never really defined by the courts But, courts “know it when they see it”

Commercial speech is granted limited constitutional protection

Subject to regulation

Time, place, and content

What is commercial speech?

Never really defined by the courts

But, courts “know it when they see it”

Commercial speech doctrine Originally used to help communities restrict/prevent door-to-door peddlers Traditional concept Communication to propose a commercial transaction I will sell you “X” product for “Y” price Concept has been expanding Statements encouraging a future economic transaction

Originally used to help communities restrict/prevent door-to-door peddlers

Traditional concept

Communication to propose a commercial transaction

I will sell you “X” product for “Y” price

Concept has been expanding

Statements encouraging a future economic transaction

When is a blog a commercial site? Journalist: They gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience. GM’s FastLane blog is a forum for GM executives to talk about GM’s current and future products and services

Walmarting Across America Oops! Should Richard Edelman have known better? Desire to control the message blends independence with commercial backing Is this deceptive?

Oops!

Should Richard Edelman have known better?

Desire to control the message

blends independence with commercial backing

Is this deceptive?

Deceptive speech Commercial speech doctrine allows the government to prohibit deceptive speech An act or practice is deceptive under federal law if there is a representation or omission of material information that is likely to mislead consumers A representation or omission is material if it is likely to affect consumers’ choice of, or conduct regarding a product

Commercial speech doctrine allows the government to prohibit deceptive speech

An act or practice is deceptive under federal law if there is a representation or omission of material information that is likely to mislead consumers

A representation or omission is material if it is likely to affect consumers’ choice of, or conduct regarding a product

Buzz marketing Buzz marketing is a major area of concern The FTC is particularly concerned with “sponsored” consumers Is it deceptive to fail to disclose that a marketer is paying a sponsored consumer to make claims to other consumers about the marketer’s product? Consumers may reasonably give more weight to statements that sponsored consumers may make about their opinions or experiences with a product based on their assumed independence from the marketer

Buzz marketing is a major area of concern

The FTC is particularly concerned with “sponsored” consumers

Is it deceptive to fail to disclose that a marketer is paying a sponsored consumer to make claims to other consumers about the marketer’s product?

Consumers may reasonably give more weight to statements that sponsored consumers may make about their opinions or experiences with a product based on their assumed independence from the marketer

No definitive guidelines FTC has declined to issue specific guidelines Will make determinations on a case-by-case basis Where there exists a connection between the endorser and seller of the advertised product which might materially affect the weight or credibility of the endorsement, such connection must be fully disclosed Must there be an “advertisement?”

FTC has declined to issue specific guidelines

Will make determinations on a case-by-case basis

Where there exists a connection between the endorser and seller of the advertised product which might materially affect the weight or credibility of the endorsement, such connection must be fully disclosed

Must there be an “advertisement?”

Buzz marketing on the Internet Fake peers Hidden sponsors Pay-to-post Sock puppets Sponsored consumers Assume FTC approach to “traditional” buzz marketing will apply to blogs and social media Sock puppets will be illegal in the EU in 2008

Fake peers

Hidden sponsors

Pay-to-post

Sock puppets

Sponsored consumers

Assume FTC approach to “traditional” buzz marketing will apply to blogs and social media

Sock puppets will be illegal in the EU in 2008

Commercial speech and new media Is Marié engaged in deceptive trade practices? Marié Digby Pop / Rock / Alternative Los Angeles, California United States Profile Views: 157788 Last Login: 9/22/2007

Defamation Another restriction on speech A false statement that harms an individual’s reputation in the eyes of the community Accusations of dishonesty, criminality, adultery Historically, publishers have been held immune from liability arising from third party content Bloggers assume they are immune from liability for linking to outside content

Another restriction on speech

A false statement that harms an individual’s reputation in the eyes of the community

Accusations of dishonesty, criminality, adultery

Historically, publishers have been held immune from liability arising from third party content

Bloggers assume they are immune from liability for linking to outside content

New trend in publisher liability What are the risks? Courts are beginning to differentiate between “provider” and “publisher” A provider merely reproduces material without alteration Immunity preserved New view of publisher Making editorial decisions Growing risk that minor editing of third party content may destroy immunity

What are the risks?

Courts are beginning to differentiate between “provider” and “publisher”

A provider merely reproduces material without alteration

Immunity preserved

New view of publisher

Making editorial decisions

Growing risk that minor editing of third party content may destroy immunity

New areas of research?