Advertisers beware. Anti-corporate activists, no longer content to ask for petition signatures on a street corner, are using guerilla tactics to sabotage corporate communications and advertising campaigns. In recent months, such groups have launched various advertising hoaxes designed to challenge the advertiser's message and its brand.
The most recent example of this involves oil giant Chevron, and provides some teachable legal lessons for advertisers. In October, Chevron, along with its advertising agency, McGarryBowen, released a new advertising campaign called "We Agree." The campaign was intended to communicate that Chevron is a more environmentally responsible company than most people believe it to be.
The attack on Chevron's campaign was three-pronged. First, just hours before Chevron issued the e-mails and press releases launching the new campaign, an organization called The Yes Men, working with the Rainforest Action Network and Amazon Watch, launched a series of fake communications, including a website and press releases, designed to look highly similar to Chevron's materials. The fake materials, however, highlighted Chevron's ongoing disputes regarding damage the company allegedly caused in the Amazon rainforest. The full saga of the hoax is described in Advertising Age, whose website was also spoofed as part of the scheme. In fact, The Yes Men's work was so realistic that some media outlets believed it was Chevron's campaign.
The second prong of the attack came from an environmental blogger, Lauren Selman, who was recruited to participate in Chevron's television advertising campaign. After taking part in the casting call, Selman blogged about the upcoming campaign, criticized Chevron, and gave kudos to The Yes Men. Suffice it to say, Ms. Selman was not hired to participate in the ad.
Third, a street artist hired by McGarryBowen to create posters for Chevron's campaign instead created posters trumpeting his own opinions about oil companies and posted them in place of Chevron's advertising. He even chronicled his efforts in a video posted on YouTube.
It is difficult for advertisers to combat such attacks given the myriad marketing outlets provided by the web. Advertisers should not just accept this new reality without action, though. From a legal perspective, advertisers can take some proactive steps prior to and following an advertising campaign launch to help minimize their risks.
- Insist on confidentiality. Confidentiality provisions are common in agreements with advertising agencies, but many advertisers rely solely on their advertising agencies to handle talent and vendor agreements during a campaign. Insist that any person involved in the creation or execution of the campaign, including a participant in a casting call, is required to maintain confidentiality.
- Don't forget about social media. Social media outlets are convenient, free ways for anyone to spread their message. In an agency, talent or related contractor agreement, include restrictions on sharing information via social media in confidentiality clauses. Further, include a take down provision to require anyone who breaches their confidentiality obligations to immediately remove the offending content.
- Examine agency agreements. In any major advertising campaign, things can go wrong, as demonstrated by the street artist hired by Chevron. The advertiser and the agency are better off knowing up front who is responsible for the costs should such events occur. This is easily addressed in the agency agreement between the parties and can help minimize disruption to both businesses and the business relationship overall should such an incident occur.
- Monitor and Address. Set up alerts to monitor fake or unauthorized advertising. Anyone can set up a Twitter or Facebook account that appears to be legitimate corporate content. Advertisers should monitor the web for this behavior either actively or passively through a tool such as Google alerts. In addition, have an action plan in place to address fake or unauthorized content, which should include filing complaints with service providers used by the wrongdoers.
Large companies, particularly those embroiled in hot-button social issues, are the most likely targets for hoax campaigns. However, with the versatility and ease of the web, any advertiser could be a target. Companies can mitigate their risks by evaluating their arrangements with their advertising agency, ensuring that responsibilities and liabilities are clear up front, monitoring media and having a strategy in place to address fake or unauthorized advertising should it occur.
Kelley Drye & Warren LLP
The attorneys in Kelley Drye & Warren's Advertising and Marketing practice group have broad experience at the FTC, the offices of state attorneys general, the National Advertising Division (NAD), and the networks; substantive expertise in the areas of advertising, promotion marketing and privacy law, as well as consumer class action defense; and a national reputation for excellence in advertising litigation and NAD proceedings. We are available to assist clients with developing strategies to address issues contained in this Advisory.
For more information about this Client Advisory, please contact:
John E. Villafranco
Gonzalo E. Mon
Kristi L. Wolff