Be careful which brands you like, friend and follow going forward.
That was the headline yesterday in The New York Times article, When ‘Liking’ a Brand Online Voids the Right to Sue. What may seem like legal side-stepping to avoid things like class action lawsuits or individuals suing a brand, feels like a massive movement by brands to force consumers with any sort of issue to seek arbitration over the courts. There are pros and cons to this approach, but it is becoming a major issue for major corporations. With that, this New York Times article points this issue into an arena that may shock the marketing industry. From the article:
"General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, ‘join’ it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways. Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site."
What does that mean to social media? A lot.
Marketers have taken issue with these sorts of things long before this breaking news. Companies like Facebook, Twitter and others are constantly being criticized because of their terms of service and usage regulations and agreements. They are long, legal, cumbersome and very infrequently read or understood by consumers. Now, imagine this layer of confusion being added to mix. So, as this theory goes, if someone likes your page on Facebook, they are suddenly waiving their right to sue the company should something negative come about. While this may work for other industries, this seems even more restrictive when we’re talking about food companies. Picture a scenario where you like this brand on Facebook and then months later are poisoned due to quality controls at the factory. Suddenly, you can’t sue or take part in a class action suit because you clicked a like button for a completely different reason. If you didn’t click that like button… does that make it fair ball to sue?
We have to get less legal about things.
No one will argue that we live in very litigious times. People suing fast food restaurants because they spilled boiling coffee on themselves by accident (how is that the brand’s fault? They should not make the coffee so hot or they should put a warning on the coffee cups that the contents may be hot… for real). It takes all kinds. Still, in a world where consumers have demanded transparency, and brands have responded by attempting to be more open and real (in particular, on social media channels), it’s astonishing that these types of antics will be – in some form or another – considered good customer advocacy.
Connecting the points.
What makes digital marketing truly fascinating (for me, anyways) is how it elevates brands above and beyond a world of advertising (shouting messages) into a bigger palette of marketing expression. With it will come challenges (as we have seen on numerous occasions). It forces everybody in an organization (from the CEO and CMO down to the people on the frontlines) to think differently about how they act, react, communicate and engage with an audience. On the the other side, if every attempt to do so is met with a need for the legal department to absolve the brand of any mistakes, we may be headed in the wrong direction. The article goes on to state: "Arbitration experts said courts would probably require General Mills to prove that a customer was aware of its new policy before issuing decisions denying legal action against the company." Translation: we are pitting brands against consumers and vice-versa… all over again. Over a decade ago, we begun to usher in this new type of connection and communication. It made me proud to be in the marketing profession. I understand the brand’s perspective and their need to protect themselves from frivolous and unfounded claims. I also understand the consumer’s perspective and their need to take action against anyone who knowingly does them harm. We have a legal system for a reason. That being said, forcing consumers to waive their legal rights because they "like" a brand on Facebook feels like a terribly anti-social statement to be making.
We have to ask ourselves if these types of legal arrangements are really empowering and entrusting our consumers or does it spell the end for social media?