Sep 8, 2011

Two Online Marketing Bungles

Two recent developments show that marketers who attempt to use pranks as part of their online marketing campaigns run the risk of instead engendering anger rather than sales. And there are also legal risks to such activities.

The New York Tiimes reports on a marketing campaign in which food bloggers and mommy bloggers were invited -- and were invited to bring two of their readers -- to what they were told was a dinner at an "underground restaurant" in New York by “Ultimate Cake Off” chef George Duran and featuring "supermarket guru" Phil Lempert. But the restaurant didn't really exist beyond the five dinners, and the meal featured an entree -- three meat and four cheese lasagna -- and a dessert -- razzleberry pie, served a la mode -- that are two of  the Marie Callender’s brand frozen foods. Marketers for ConAgra, Marie Callender’s parent company, placed hidden cameras in the room, and planned to record the blogger's praise of the meal before its nature was revealed.

But, as reported by the Times, many bloggers' reactions after the secret was revealed was less than enthusiastic (examples here, here, here, here, here and here). Not all reaction was negative (see this post, for example), but the overwhelming sentiment amongst the bloggers involved was anger that they had been duped and, for those who ran contests to have readers join them at the dinner, their credibility with their audiences threatened.

But there's another issue here. As I've written before, the Federal Trade Commission has said that while the its endorsement guides require bloggers to disclose freebies and discounts that they get for writing about particular products or services, marketers that provide the goodies must inform the bloggers of their obligation. It has even taken in some cases where marketers who failed to do so (here, here and here). The sponsors of the event appear to have never told the bloggers about the FTC guides. (Of course, doing so may have "ruined" the "surprise" about the meal.)

In addition, the stunt probably ran afoul of New York City zoning rules.

Meanwhile, Evan Brown's "Internet Cases" blog reports on a California appeals court's decision allowing a woman's lawsuit against Toyota and advertising agency Saatchi & Saatchi North America to proceed, after she received a series of creepy e-mails from an apparent stalker with access to her personal information, which turned out to be an advertising campaign for the Toyota Matrix. Toyota had tried to get the legal case dismissed and the controversy sent to an arbitrator on the grounds that the women had consented to receiving the e-mails by clicking on "I agree" on a Toyota website that purported to be a "Personality Evaluation." But the woman argued that any agreement to the terms and conditions, including a mandatory arbitration clause, was void because it was based of fraud. The court agreed.

It is unsurprising, of course, that the terms and conditions were drafted in such a way as to conceal from Duick the true nature of the conduct to which she was going to be subjected—Duick was undisputedly the target of a prank, and it would make no sense for the pranksters to warn the target in advance. Our conclusion that the contract is void because of fraud in the inception is not, however, based on any alleged facts concerning defendants‘ intent. Rather, our conclusion is based solely on the following propositions: (1) defendants were the drafters and creators of the relevant web pages, including the full text of the terms and conditions; (2) by drafting and presenting the terms and conditions as they did, including the use of the phrase "Personality Evaluation," defendants misrepresented and concealed (whether intentionally or not) the true nature of the conduct to which Duick was to be subjected; and (3) Duick was not negligent in failing to understand the true nature of the conduct to which she was to be subjected, because no reasonable person in her position would have understood it.

Duick v. Toyota Motor Sales, U.S.A., Inc., No. B224839, 2011 WL 3834740, slip op. at 7 (Cal.App., 2d Dist. Aug. 31, 2011).

As online advertising and promotion moves beyond display and pop-up ads, to interactive experiences, marketers have be careful not to push the boundaries so far as to offend their intended audiences, or run into legal trouble for doing so.


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