Unfair Commercial Practices Directive Outlaws Digging?

Before you read any further, please realise that not only is this post not legal advice, but I am not a lawyer and therefore even if I wanted to advise you, you would be well advised (ironically) not to listen to me. This post is for entertainment only - if you want to know the impact of laws on your business, speak to a lawyer who knows what they are talking about!

Many people in the UK will have heard by now of the EU's Unfair Commercial Practices Directive that comes into force at the end of May. The objective of the directive is to protect consumers and businesses from sharp selling practices including the use of untrue or misleading claims in advertising and pressure-selling tactics.

All good and worthy so far. And mainly a restatement of existing laws - bringing the EU into line across the board and stating explicitly what the situation is across the continent.

The issue for online marketers is the definitions that are used to prevent so-called 'advertorial' which is the practice of including advertising within editorial content without flagging it as such. You see advertorial (obviously marked) all the time in offline magazines where there will be a 'news' story marked as advertorial that sings the praises of a particular product or company. Obviously this happens online as well.

The issue that has been causing a lot of comment around the online marketing industry is the new requirement saying that traders must provide all the information that the average consumer needs. Specifically listed as a 'misleading omission in commercial practice' is:

> It is misleading to fail to identify the commercial intent of the commercial practice if not already apparent from the context

This has widely been read to mean that it will become illegal to write reviews of your own business on tripadvisor (or to pay someone else to do so) and that it will become illegal to blog about your business without making clear the commercial intent. I don't want to get too much into that now.

##What about social media (as opposed to social reviews)

I think most people would fall on the "you shouldn't do that" side of posting glowing reviews of your own business on review sites. There is a greyer area, however, around social media. In the world of old media, you can pitch your story (or pay a PR to pitch your story) to a journalist or editor and they can choose whether or not to cover it. If you pay for coverage, you are advertising and there are strict rules on that (even before the new directive).

When it comes to social media, however, the 'journalist' and 'editor' become the users of the site and its algorithm respectively. There is one view-point that submitting your story (to digg) for example is the equivalent of pitching to a journalist (and therefore is something you can do yourself or pay someone to do). The quality of the story and its submission and the social media site's algorithm then do the job of deciding whether you should get front-page coverage (ignoring for a moment the issue of spamming the voting system which is a different kettle of legal fish entirely).

The opposing view-point, however, is that as soon as you submit your story it gets its own page - even if it is the worst story in the world (I love that the digg URL has '7' at the end of it - persistence is a virtue) that no right-minded journalist or editor would ever cover. The fact that this story then appears on a website without any disclaimer saying it is commercially motivated means that it should fall foul of the new directive.

So... What we really need is a lawyer to tell us whether submitting anything you have written (or anything of your clients') to social media sites is going to be against the law.

##It goes even further - what about thumbs-up

There is quite a lot of consensus that reviews of your own business (or a client's business) are not allowed unless explicitly declared as commercial. What, then, about hitting the 'thumbs-up' button on stumbleupon on a client's site? What about digging a story your client wrote on their own blog (not submitting it - just digging)? What about adding a Youtube video to your favourites? Each of these are endorsements (just like a tripadvisor review) that a consumer can see and which are commercially-motivated but which are not declared.

In fact, it's even worse than that - there is no way to flag a digg or a SU thumbs-up as commercially motivated (that I know of).

Never mind your boss wanting you to stop stumbling, digging, redditing etc. all day. Pretty soon your legal department is going to say the same thing...

##Little side-note on sphinn

Some websites such as sphinn explicitly encourage the submitting of your own stories:

> Yes, you can submit your own stories. In fact, we'd rather you directly submit your own stories you think are of interest to the community than have someone do it for you.

I wonder if that makes it ok in the directive's eyes, or whether you still need to append your submission with 'I work for this company'. And there is still the problem that when you 'sphinn' something, you don't get a chance to declare that your sphinn was probably influenced by who pays your wages...

##Finally... don't ebay your old computer equipment

There are other bits of the directive that cover all kinds of other areas and some of them seem a little less obviously 'wrong' to me. It doesn't strike me as a problem if you ebay something that your company also sells... Maybe I'm not seeing the issue here.


I don't just want to pick holes in this legislation - I think it's probably very well-meaning and I also don't want to come across as in favour of dodgy business practices (because I'm not). I am just concerned that it needs to be very clear what is and isn't allowed.

The penalties are potentially harsh - including jail time for directors of companies, so I'd kinda like to know what we can and can't do. Are we risking the clink every time we add a youtube video to our favourites?

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About the author
Will Critchlow

Will Critchlow

Will founded Distilled with Duncan in 2005. Since then, he has consulted with some of the world’s largest organisations and most famous websites, spoken at most major industry events and regularly appeared in local and national press. For the...   read more