07/03/2007

‘Flogging’ is probably not a term you will have heard of in relation to online marketing. Blogging, however, as one of the new breed of second generation or 'Web 2.0' website services, is one you probably have. 

However, it will soon be important to be familiar with both terms, as the law in this area is set to change later this year.

Blog websites, where comments on a given topic are posted in chronological order, have increasingly become accepted as a mainstream method of communication; whether for social, corporate or political ends. And in terms of marketing, blogging can be an extremely important way of driving brand awareness.

Flogging is the name which has been given to a particular type of marketing blog; one which appears to come from a consumer, when it has actually been created by, or on behalf of, the company whose products are being promoted. In other words, it is a fake blog.

At the moment the main risk with flogging is essentially a commercial rather than a legal one; i.e. the risk of adverse publicity if the ‘flog’ is discovered. This has already happened with a number of global corporations, including Sony, and Wall-Mart.

It also happened with Vichy, which is part of the L’Oreal cosmetics group. A blog was set up in relation to the launch of a new anti-ageing cream, which contained the diaries and, indeed, photographs of a woman called Clare, who claimed to be using the cream. If Clare looked and sounded too good to be true, it was because she was. She was revealed to be a character invented by the ad agency involved. However, Vichy were at least able to salvage the situation to some extent, by admitting the mistake and allowing genuine customers to post unedited comments about the product.

However, the legal position is going to change later this year when the UK implements the EU Unfair Commercial Practices Directive. This prohibits a company falsely representing itself as a consumer; which is precisely what is involved with flogging. Therefore, companies who get involved with flogging may soon be risking rather more than just a PR disaster.

Andy Harris is an associate in the IT/IP and Media department of Tods Murray Solicitors and can be contacted at andy.harris@todsmurray.com or on 0131 656 2000.


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