Viral Marketing Guide

18 February, 2016

“Viral”, “recommend-a-friend” or “refer-a-friend” marketing is increasingly popular (and if done right, very effective) but is not without risks. Businesses intending to encourage individuals to recommend their products or services to friends and contacts will usually need to comply with rules on advertising standards as well as privacy regulations, data protection laws and consumer protection legislation.  Failure to take the issue seriously can result in damage to your business’ reputation, public censure, fines and potentially even criminal proceedings. 

 

There are two ways in which this type of marketing is usually carried out. “Refer-a-friend” involves the promotor inviting a customer, contact or website visitor to recommend a particular page, product or service to a friend. For website only referrals, the visitor’s email address is usually requested as well as the friend’s email address.  The friend then receives an email that, on arrival, often looks like it was sent by the person making the recommendation, making it more likely to be read.  “Viral” marketing involves individuals themselves forwarding advertising content to their friends or contacts who in turn pass the message on (hence the virus analogy). If successfully carried out, “viral” campaigns have the potential to reach huge numbers of relevant people in very short timeframes with minimal cost to the advertiser.

 

Potential legal issues arise with both these types of advertising, but marketing directly to friends and contacts whose address you have been provided by a third party “friend” is more difficult to do legally (and is not popular with the Advertising Standard Authority (ASA)). If you still choose to do this, to minimise the risks (and on top of your normal obligations regarding direct marketing):

  • get consent from any “friend” whose details you have been passed to receiving advertising from you (although this will be tricky in practice). In the absence of consent, sending unsolicited adverts is a breach of the Privacy and Electronic Communications Regulations (PECR);
  • make the friend aware from whom you obtained their details, and let the referrer know that you will be doing this, for the purposes of the Data Protection Act (DPA);
  • be clear that you are sending the advert, rather than giving the impression that it was sent by the friend, otherwise you risk a breach of consumer protection laws.

 

For viral marketing, there is less risk under the DPA, as you won’t be dealing with any extra personal data. However, if you encourage forwarding, you must still comply with the PECR, as you will be instigating the sending of electronic messages.  Simply creating interesting and catchy content won’t trigger PECR obligations, but any form of encouragement will (for example a button to “forward to your friends”).  If you do encourage people to forward content:

  • make it clear that adverts should only be forwarded to friends or third parties whom the “referrer” knows will be happy to receive them;
  • ensure the advertising content (as with all direct marketing messages) makes your identity clear and includes your company details;
  • avoid using staff to forward content while posing as consumers. This is not permitted under the PECR, and will breach consumer protection laws.

The same rules apply to all electronic messages, from emails and texts to direct social media messages.

 

Any direct marketing content will also have to comply with the rules published by the ASA. Attempts by advertisers to create edgy or exciting content which will be shared or forwarded can sometimes result in breaches of the ASA rules, and/or negative publicity.

 

So, while viral marketing can boost an advertiser’s profile, it also carries risks if the content and any permissions, notices or distribution processes aren’t carefully considered to ensure compliance with the relevant regulations. If you’re unsure as to whether your marketing campaign might be non-compliant, taking legal advice may save you bad press, expense, and possible criminal liability.