My Legal Analysis of Social Marketing

Finally, proof that this blog advances scholarship! I’ve completed a manuscript for my newest journal article, which began life as some posts (starting here) musing about the legal implications of Facebook’s then-new advertising programs, including Facebook Beacon, which notified users’ friends of their purchases. The article, Disclosure, Endorsement, and Identity in Social Marketing, will appear later this year in the University of Illinois Law Review. Here is the abstract:

“Social marketing” is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers can send personalized promotional messages featuring an ordinary customer to that customer’s friends. Because they reveal a customer’s browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals’ ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation — spanning from privacy to trademark and unfair competition to consumer protection to the appropriation tort and rights of publicity.

This Article examines potential concerns with social marketing and the various legal responses available. It demonstrates that none of the existing legal paradigms, which all evolved in response to particular problems, addresses the unique new challenges posed by social marketing. Even though policymakers ultimately may choose not to regulate social marketing at all, that decision cannot be made intelligently without first contemplating possible problems and solutions. The Article concludes by suggesting a legal response that draws from existing law and requires only small changes. In doing so, it provides an example for adapting existing law to new technology, and it argues that law should play a more active role in establishing best practices for emerging online trends.

Thanks to all the commenters and e-mailers who responded to the blogging and helped shape this project!

5 Responses to “My Legal Analysis of Social Marketing”

  1. [...] Bill McGeveran has posted a draft legal analysis of social marketing, to appear in the University of Illinois Law Review.  Bill writes: I’ve completed a manuscript for my newest journal article, which began life as some posts (starting here) musing about the legal implications of Facebook’s then-new advertising programs, including Facebook Beacon, which notified users’ friends of their purchases. [...]

  2. I think using websites like Myspace & Facebook as a marketing tool will bring in new customers. I don’t see a problem with the legality of a company extracting personal information to which they will market to (ie buying habits etc). Now I do think there is a major problem with teenagers and children using these social websites. I personally have younger cousins and friends and it appears most of them are trying to make people think they are older. Why don’t the lawyers focus more of the energy to help fight these crimes instead of focusing on corporations.
    God bless!

  3. “Group Travel” — Plenty of scope to focus on both sorts of problems, of course. And note that social marketing involves more than just “extracting information” (although that can be troubling too). A social marketer reveals your information to your friends. If done without authentic consent, I’d argue that’s a problem for all ages.

  4. Interesting blog post. What would you say was the most important marketing factor?

  5. I had not realized that social marketing fell between the cracks, so to speak, of existing regulatory laws. Thanks for helping to bring this to my attention and so I can begin focusing on some of the legal ramifications.