Position of the Nordic Consumer Ombudsmen on social media marketing of 3 May 2012

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1 Position of the Nordic Consumer Ombudsmen on social media marketing of 3 May 2012 Contents Introduction 1. General information 2. Marketing messages must be identifiable as marketing 3. Unsolicited electronic communications 4. Marketing directed at children and young people 5. Banner advertisements Appendix 1: Legal regulation of commercial messages on Facebook Appendix 2: Rules on governing law in case of cross-border commerce (in Danish) Appendix 3: Liability for the content of marketing material (in Danish) Appendix 4: Danish rules on the collection of data, etc., through cookies (in Danish) Appendix 5: Links and references 1

2 Introduction Traders who use social media marketing must comply with the general rules applicable to Internet marketing. In May 2010, the Nordic Consumer Ombudsman prepared a joint Nordic position paper on Internet commerce and marketing. 1 The position paper describes the general rules and principles applicable to Internet marketing and therefore also applies when traders use social media marketing. The present position paper on social media marketing is a supplement to the position paper on Internet commerce and marketing. The position paper applies the terms should and must at various times. When the term should is used, it indicates a recommendation, and when the term must is used, it indicates a requirement stipulated directly in marketing legislation or other consumer protection legislation. 1 2

3 1. General information Social media generally mean online services allowing private individuals to create profiles and communicate with each other, including sharing information and content, such as text, images and sound files. A social medium may be a chat room, a game or a social network. However, many social media are also used by traders who wish to market their products to the social media users. Social media often make various marketing options available to traders, such as the possibility for traders to buy targeted banner advertisements and to create profiles providing various options for spreading the commercial messages of their businesses by means of functions allowing users to share the traders marketing material with other users. The review takes as its basis the types of marketing currently available to traders to market their products or services on social media. The position paper is general and applies to all social media. It includes specific examples from Facebook as this social medium is probably the most commonly used medium today as is also described in Appendix 1. As mentioned above, social media frequently offer traders the possibility of creating advertisements that can be targeted on the basis of the relevant social medium s knowledge of the individual user, including the user s age, gender, residence and data collected by means of cookies, etc. National rules implementing directives on the protection of personal data apply to traders using users personal data for social media marketing purposes, and traders must ensure that the rules on the processing of personal data have been complied with. 2 The issue of the processing of users personal data by traders, including the collection, use or transfer of such data, will not be discussed in this position paper. Reference is made instead to the national data protection agencies and opinions from an EU advisory working party. 3 Nor does this position paper regulate requirements of information on and consent to the storage of or access to data in the end user s terminal equipment. See Appendix 4 to this position paper on the Danish rules in this field. The position paper is neutral in terms of technology and applies regardless of the mode of access to the social medium. Traders using social media marketing must comply with the general legislation on marketing practices. The rules to which traders must pay particular attention when using social media marketing are reviewed below. The position paper applies the concepts of marketing and commercial communications/messages. The concepts must be understood to comprise everything from image building ( branding ) to traders specific sales offers and other sales promotions. 2 Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Data Protection Directive) and Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications). 3 The working party, which is called the Article 29 Data Protection Working Party, was set up under the Data Protection Directive and includes representatives from the data protection agencies of all Member States. Examples of its work are the Article 29 Data Protection Working Party Opinion 5/2009 on online social networking and Opinion 2/2010 on online behavioural advertising. 3

4 2. Marketing messages must be identifiable as marketing Social media are mainly perceived as a platform for the exchange of information between private individuals. Traders using social media for marketing must therefore pay particular attention to the necessity of making it clear at all times to users of the relevant social medium that they are being exposed to marketing. The overall purposes of the requirement of identification are to provide transparency and to enable social media users to see when they are being exposed to marketing or other commercial communications All commercial communications must be designed and presented in a way to make them clearly identifiable as such and must clearly identify on whose behalf they are made If a commercial communication is shown in a place not reserved for marketing messages, the requirements of identifying the commercial communication as such are stricter Traders must not falsely claim or create the impression that they are not acting for purposes related to their trade, business, craft or profession or falsely represent themselves as consumers Traders using their own private profiles to market their businesses or products must clearly state that their messages originate from a trader When a private individual receives payment or other benefits for mentioning or otherwise marketing a trader s goods or services, the private individual must clearly identify the commercial communication as such or make it clear that he or she has received payment or other benefits for mentioning the product. The trader is obliged to inform the relevant private individual of this requirement Traders who create profiles, pages or the like for their businesses must observe certain information requirements intended to ensure that both consumers and authorities have easy, direct and permanent access to information on the business. The information to be given by traders includes the name, address and address of their business, the 4 See Article 6(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce). 5 On the social medium Facebook, the right side of the page is reserved for advertisements, for example. This is indicated by a bar with the heading of Sponsored. By contrast, the timeline/wall and News Feed/start page (Home) of private users cannot be considered reserved for advertisements. 6 See item 22 of Annex 1 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive). 4

5 number under which the business is registered in a public register 7 and other data to be provided according to legislation Unsolicited electronic communications 9 Traders normally must not contact natural persons 10 by means of electronic mail for the purposes of direct marketing. The prohibition does not apply, however, if a trader has received the recipient s prior, express consent to receiving marketing material by electronic mail. 11 When are social media communications or messages considered electronic mail? Electronic mail means: Any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient s terminal equipment until it is collected by the recipient. 12 A communication or message to a social media profile will fall within the prohibition if the trader communicates by means of electronic mail as defined above. Whether a communication falls within the concept of electronic mail depends on a specific assessment. The following three conditions must be met for the communication to be considered electronic mail: The message must be sent over a public communications network. If the communication is made over a web service not limited to a specific group of end users from the outset, the message will have been sent over a public communications network. The message must be stored in the network or in the recipient s terminal equipment until it is collected by the recipient. Messages that are shown only to users who are online, but disappear if this is not the case, cannot be said to be stored in the network or in the recipient s terminal equipment until it is collected by the recipient. 13 The message must be sent to the social media user. Consequently, it is a requirement that the message is sent to the social media user. This implies the assumption that the message is sent to a specific user s electronic address. 7 In Denmark: CVR-registeret. In Sweden: Næringslivsregistret. In Norway: Foretaksregisteret. In Finland: Handelsregistret. In Iceland: Ríkisskattstjóri. In the Faroe Islands: Skráseting Føroya. 8 See Article 5 of the Directive on Electronic Commerce. 9 The Finnish Ombudsman has not approved section 3 as this field is the responsibility of the Data Ombudsman in Finland; however, he has not yet determined how to interpret the Directive relative to social media. Nor has the Icelandic consumer authority (Neytendastofa) been able to approve this section as it falls within the sphere of another authority. 10 In Denmark, the prohibition applies to everybody, that is, both natural and legal persons and public authorities. 11 See Article 13(1) of Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, which amended Directive 2002/58/EC of 12 July 2002 (Directive on Privacy and Electronic Communications). The prohibition applies whether the communication markets specific goods or services or is intended to establish or raise the trader s reputation or image ( branding ). 12 The definition of electronic mail appears from Article 2(h) of the Directive on Privacy and Electronic Communications (Directive 2002/58/EC of 12 July 2002). 13 Pop-up ads are an example of such messages, see Commission answer of 27 January 2003 (answer to written question E-3392/02), which is available at: 70:cs&page 5

6 Some social media are technically designed, in part or in full, not to send messages to the recipient, but require the recipient to collect them or otherwise exchange them. This may give rise to doubts as to whether a message is considered to fall within the electronic mail definition in such cases. It may be argued that the communication may be considered sent to the social media user if the user cannot avoid receiving the communication, for example by sorting messages from friends through his or her privacy settings in order to avoid receiving commercial communications. If a communication is sent by electronic mail for the purposes of direct marketing, the communication is only lawful if the recipient has given his or her prior consent as described in section 3.2. If a communication does not fall within the definition of electronic mail, for example, because it cannot be considered to have been sent to the recipient, the Nordic Consumer Ombudsmen are of the opinion that the communication falls within Article 13(3) of the Directive on Privacy and Electronic Communications. 14 Pursuant to this provision, subscribers or users must, as a minimum, be able to opt out of receiving unsolicited communications for the purposes of direct marketing by means other than electronic mail. Read more in section Traders are responsible for ensuring that they do not contravene the prohibition against unsolicited communication by means of electronic mail. A trader who is in doubt as to whether he or she is contacting a person by means of electronic mail and who has not obtained such user s express consent to marketing should either examine the technical design of the relevant social medium or refrain from contacting the user over the social medium Traders must not contact a social media user for marketing purposes by means of electronic mail unless the user s consent has been obtained The user s consent must be active, voluntary, express, specific and informed Consent cannot be obtained through the standard terms and conditions of the social medium Consent must be given in advance, meaning that a trader cannot obtain consent to marketing by contacting the recipient by electronic mail. Such communication will in itself be considered an unsolicited communication. 14 See footnote 11. The Directive applies to the processing of personal data when public electronic communications services are made available through public communications networks in the Community. Pursuant to Article 2(d), communication means any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service. 15 There is great interest in the Consumer Ombudsmen s assessment of messages on the social medium Facebook. The Consumer Ombudsmen s assessment of how to interpret messages on Facebook relative to the rules on unsolicited electronic mail and other unsolicited electronic communications appears from Appendix 1. The Appendix expresses the Consumer Ombudsmen s current interpretation, which may be revised following discussions in the European Union on the rules. See Appendix 1 for further details. 6

7 3.3. If the trader applies a user s consent to send marketing by means of electronic mail, all messages from the trader must include an address which the recipient can contact to recall the consent, thereby preventing future communications Where a trader applies means other than electronic mail for unsolicited communications for the purposes of direct marketing to subscribers or users, it must be possible for the recipient to opt out of receiving communications from the trader A trader contacting a person must provide the person with an easy way of opting out of receiving future communications The rules apply when a trader himself or herself contacts a social media user and when the trader awards a prize to or otherwise rewards or invites social media users to spread messages from the trader as mentioned in sections 3.1 and 3.4 to other users An action is considered to be associated with a prize or a reward if the user will obtain a benefit, such as a discount, or obtain or raise his or her winning chances in a competition, or if an incentive for spreading the message is otherwise created. 4. Marketing directed at children and young people under the age of 18 The requirements and recommendations of sections 1 to 3 and section 5 of this position paper also apply in the case of marketing directed at children and young people, but always subject to the more stringent requirements stated in this section 4. Additional requirements are the special rules laid down in the legislation of the individual Nordic countries on marketing directed at children and young people The commercial communication must be clearly identifiable as marketing by the age group targeted by the trader Traders must frame their marketing with specific reference to the natural credulity and lack of experience and critical sense of children and young people, as a result of which they are readily influenced and easy to impress Traders must particularly take into account whether special precautions are required to 16 Article 13(4), second limb, of the Directive on Privacy and Electronic Communications. 17 In Denmark, persons can generally opt out of receiving direct marketing by means of remote communication technologies other than electronic mail, facsimile machines or automated calling systems by becoming listed on the Robinson list, which traders much check before they direct any unsolicited communications to the persons. The requirement does not apply if a person has given his or her prior, express, specific and informed consent to receiving commercial communications from a trader. Presumably, it is often not possible in practice for Danish traders using social media marketing to know to whom the communication will be forwarded and check the Robinson list. It may therefore be difficult to enforce the duty to check the Robinson list in advance against traders using social media marketing. 18 This means that the Nordic Consumer Ombudsmen do not consider the use of share functions to be contrary to the rules. See also Appendix 1. If a trader invites users to spread the message as mentioned in section 3.5.1, the trader will become liable if the rules are not complied with. 19 In general, the term children and young people covers persons up to the age of 18, however, it is necessary to assess each commercial communication on the basis of the specific age group at which it is targeted. This implies that marketing to small children must be assessed differently from marketing to young people aged years. 7

8 protect the specific target group due to the form and content of the marketing and the nature of the product Traders must not directly exhort or invite children to buy or persuade their parents or other adults to buy the traders products. 20 Whether the marketing exhorts or invites children to buy must be assessed in each case. Such assessment must be made from the individual child s perspective by taking into consideration its age, development and other factors rendering children particularly vulnerable. In the specific assessment, importance will be attached to the following elements, among others: How clearly the exhortation to buy has been phrased, including the impression created. Marketing containing text such as: go buy the book or ask your mum to pick up the product in the nearest shop will be a direct exhortation to buy How the marketing is directed at children. Has the marketing been sent through a medium targeting children directly and individually, for example? How easy it is to buy the product marketed. As an example, is it possible to click a link, thereby making a purchase? Marketing with a text stating buy here and linking to a page on which a purchase can be made will be a direct exhortation to buy Traders must not directly or indirectly incite children and young people to violence, use of intoxicants (including alcohol) or other dangerous or reckless behaviour, nor make other use of violence, fear or superstition in order to influence them Traders must not advertise products for which children cannot enter into any purchase agreement under national legislation, such as alcohol and cigarettes Traders should not use children and young people for sales and marketing purposes, including as a sales channel, such as friend recruitment schemes and the like Traders should not invite social media users to share marketing if the marketing is particularly directed at children and young people To the extent that marketing rules prohibit the marketing of specific products to children and young people, traders are obliged, on a continuous basis, to apply the 20 See Item 28 of Annex 1 of the Unfair Commercial Practices Directive. 21 See the Commission booklet on the Unfair Commercial Practices Directive. ISBN Friend recruitment consists in helping traders find buyers among one s own friends. 8

9 best possible technical measures capable of checking the age of the social media users to whom the marketing is shown If, for example, traders want to market alcoholic products through a social medium, they must take every possible precaution to ensure that the marketing is only aimed at users over the age of 18. This also applies to traders marketing content which the social media users are able to share. 5. Banner advertisements 5.1. Banner advertisement content must comply with the general legislative requirements If a specific product or service is offered for sale in a banner advertisement, the information on the product, its price, composition, use, quantity, etc., must be correct, and the advertisement must not be misleading because of its general form of presentation or because essential information is omitted Essential information on the product or the service must appear from the banner advertisement with the same or approximately the same message impact as the invitation to buy the product or the service If a product or a service is offered for sale in a banner advertisement with information on the price, the price must be the total minimum price payable by the consumer, inclusive of VAT, taxes and other costs and fees 24 payable in connection with the purchase of the product or service Sales promotions, such as offers to participate in competitions, offers of gifts with purchase, samples, trial periods or the like intended specifically or generally to promote the trader s sales must be marketed so that any conditions related to the offer are clear, transparent and easily accessible to the social media user The phrasing of the conditions must not be likely to give rise to any misunderstanding, ambiguity or misinterpretation The conditions must appear with the same message impact as the sales promotion Banner advertisements will rarely have space to describe all the reservations, terms and conditions that may be related to a sales promotion. If the advertisement describes the offer in a clear, loyal and balanced way, the consumer may be referred to reading the specific 23 See Articles 6 and 7 of the Unfair Commercial Practices Directive. 24 Costs not attributable to the individual product need not be included in this price, however. Such costs may be delivery costs. It must be stated in direct connection with the price that further costs will be added, and the calculation principles must also be provided. 9

10 conditions through a link in the advertisement. However, material conditions must always be stated in the banner advertisement with the same or approximately the same message impact as the information on the sales promotion Traders must not describe a product or a service as gratis, free, without charge or the like if consumers have to pay anything other than the unavoidable cost 26 of responding to the commercial practice in question and collecting or paying for delivery of the product or the service Traders must not create the false impression that a consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either: there is no prize or other equivalent benefit, or taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost If a social media user is offered to participate in a competition in a banner advertisement, the advertisement must at the same time state in a clear, loyal and balanced way whether it is a condition for participating in the competition that the consumer concludes a purchase agreement. If this is not stated, the advertisement will normally be deemed misleading. 26 Such costs may be postage or transport costs, but not packing, handling or administrative costs. 27 See Item 20 of Annex 1 of the Unfair Commercial Practices Directive. See also the Commission Guidance on the Implementation/Application of Directive 2005/29/EC on Unfair Commercial Practices read with Commission Staff Working Document SEC(2009) 1666 of 3 December See Item 31 of Annex 1 of the Unfair Commercial Practices Directive. 10

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