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Directorate-General for Consumers 2018 EUR 1 EN BEHAVIOURAL STUDY ON ADVERTISING AND MARKETING PRACTICES IN ONLINE SOCIAL MEDIA Annex 1.5 Legal assessment of problematic practices Consumers, Health, Agriculture and Food Executive Agency Specific contract No. 2015 85 01 under Framework contract No. Chafea 2015 CP 01 Prepared by the GfK Consortium Final version: June, 2018 Directorate-General for Consumers 2018 EUR 2 EN EUROPEAN COMMISSION Produced by Consumers, Health, Agriculture and Food Executive Agency (Chafea) on behalf of Directorate-General for Justice and Consumers Unit 03 Economic analysis and evaluation Contact: Unit 03 E-mail: JUST-03ec.europa.eu European Commission B-1049 Brussels EUROPEAN COMMISSION Directorate-General for Consumers 2018 EUR 3 EN Behavioural Study on Advertising and Marketing Practices in Online Social Media EUROPEAN COMMISSION Directorate-General for Consumers 2018 EUR 4 EN LEGAL NOTICE This report was produced under the EU Consumer Programme (2014-2020) in the frame of a specific contract with the Consumers, Health, Agriculture and Food Executive Agency (Chafea) acting on behalf of the European Commission. The content of this report represents the views of GfK Belgium and is its sole responsibility; it can in no way be taken to reflect the views of the European Commission and/or Chafea or any other body of the European Union. The European Commission and/or Chafea do not guarantee the accuracy of the data included in this report, nor do they accept responsibility for any use made by third parties thereof. Project number: 2018.3823 Title: Legal assessment of problematic practices Language version Format/Volume Catalogue number ISBN DOI EN PDF PDF/Volume_01 EB-01-18-690-EN-N 978-92-9200-933-5 10.2818/30674 European Union, 2018 Reproduction is authorised provided the source is acknowledged. EUROPEAN COMMISSION Directorate-General for Consumers 2018 EUR 5 EN Table of Contents 1 Introductory remarks . 6 2 Review and analysis of the legal framework . 7 2.1 The Unfair Commercial Practices Directive (UCPD) 7 2.2 The Consumer Rights Directive (CRD) 8 2.3 The Unfair Contract Terms Directive (UCTD) 8 2.4 The E-Commerce Directive 8 2.5 The average consumer threshold 10 3 Legal assessment of the identified commercial practices . 11 3.1 Disguised advertisement practices 11 3.1.1 Native advertising 11 3.1.2 Influencer marketing 12 3.1.3 Advertorials 13 3.1.4 Disguised advertisement practices: the blacklisted practices 13 3.1.5 Disguised advertisement practices and the general prohibitions of the UCPD (Articles 6 and 7) 16 3.1.6 Disguised advertisement in light of the behavioural experiments 18 3.1.7 Outcome of the legal assessment 20 3.2 Social proof practices 21 3.2.1 Artificial boosting of social proof indicators. 22 3.2.2 Extrapolation of social endorsements 23 3.2.3 Other practices linked to social proof 24 3.2.4 Social proof practices: the blacklisted practices 25 3.2.5 Social proof practices: the UCPD general prohibitions 25 3.2.6 Social proof practices: behavioural insights 27 3.2.7 Outcome of the legal assessment 28 3.3 Data gathering and targeting practices 29 3.3.1 User tracking 29 3.3.2 Custom audience targeting 30 3.3.3 Social media logins 31 3.3.4 Data gathering and targeting practices: the blacklist 32 3.3.5 Data gathering and targeting practices under the UCPD general prohibitions 33 3.3.6 Outcome of the legal assessment 33 3.4 Other problematic practices 35 4 Conclusions . 36 4.1 Disguised advertising practices 36 4.2 Practices involving social proof practices 37 4.3 Data gathering and targeting practices 38 4.4 Other problematic practices 39 4.5 Non-practice specific legal policy recommendations 39 EUROPEAN COMMISSION Directorate-General for Consumers 2018 EUR 6 EN 1 Introductory remarks One of the main objectives of the Online Social Media study is to identify which are the most common practices to which the consumer is exposed on Online Social Media (OSM) platforms and, amongst those, the ones that raise issues of compatibility with consumer legislation. The present legal analysis examines the identified online social media practices in light of the applicable consumer legislation. The contracts concluded between consumers and OSM platforms, and OSM platforms and third party traders are not an object of this study. The scope of the legal research was set to cover predominantly the Unfair Commercial Practices Directive, and to some extent the Consumer Rights Directive, the Unfair Contract Terms Directive, and the E-commerce Directive. The focus of the study is on the assessment of the compatibility of the identified practices with these Directives. A number of other legal instruments of potential relevance for practices on online social media are not covered by this study, notably the new General Data Protection Regulation and the Directive on Privacy and Electronic Communications, and specific legislation such as the Services Directive and the Audiovisual Media Directive. 11See for a discussion of the link between these instruments the DG Justice Guidance Document on the Consumer Rights Directive (2014), available at ec.europa.eu/justice/consumer- marketing/files/crd_guidance_en.pdf. EUROPEAN COMMISSION Directorate-General for Consumers 2018 EUR 7 EN 2 Review and analysis of the legal framework The following section briefly reviews the EU legal instruments that are used in the legal assessment of the OSM platform practices. 2.1 The Unfair Commercial Practices Directive (UCPD) The UCPD prohibits unfair commercial practices by traders towards consumers. Commercial practices are, in particular, considered unfair under this Directive if they are misleading, aggressive or contrary to the requirements of professional diligence. who, in commercial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of are acting towards consumers “for purposes relating to“ their “business“, for example if platforms provide paid services to users; obtain revenues through the operation of the platform, such as charges for advertisement or commissions on transactions; or the use and sale of data generated on the platform.2 Also platforms that only generate data but are linked to other platforms qualify as traders if they transmit their data to the latter (such as Whatsapp or Facebook messenger, which provide data to Facebook, in turn generating revenue from the sale of data). Thus, very few OSM platforms are likely to fall outside of the definition of “trader“ under the UCPD. Further, third-parties operating on OSM platforms qualify as “traders“ under the UCPD if they engage in commercial practices towards consumers on the platform. In addition, natural persons, as soon as they are acting, for example through their personal social media profiles, “on behalf of a trader“ will fulfil this definition. Business-to- omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or of the UCPD contains a black list of commercial practices which are considered unfair in all circumstances and therefore prohibited per se (Article 5(5) UCPD). The Directive further has general provisions on misleading commercial practices in Articles 6 and 7 UCPD, and on practices violating “professional diligence“ requirements under Article 5(2) UCPD, as defined in Article 2(h) UCPD. Whether or not a commercial practice is unfair under these general provisions must be assessed on a case-by-case basis.3 The UCPD was adopted at a time when internet usage was less widespread and extensive than it is today. Therefore, in interpreting the Directive, its general and principle based concepts may need to be interpreted in a way that takes into account the current internet environment.4 For example, the updated Commission guidance on the application of the 2Commission Staff Working Document. Guidance on the Implementation/application of Directive 2005/29/EC on Unfair Commercial Practices. COM(2016) 320 Final, p 122. 3Ibid, p 5. 4See for example on the interpretation of Annex I, point 11 Hans Micklitz, UGP-Richtlinie, in: Muenchener Kommentar zum Lauterkeitsrecht, 2nd edition 2014, C.H. Beck, rn 117-118. EUROPEAN COMMISSION Directorate-General for Consumers 2018 EUR 8 EN UCPD contains a specific chapter regarding its application in the online sector, including social media (see section 5.2.9 UCPD Guidance 2016). 2.2 The Consumer Rights Directive (CRD) The CRD covers distance contracts, i.e. consumer contracts that are concluded without the simultaneous physical presence of the trader and the consumer with the use of a means of distance communication, such as the internet. The Directive lays down pre- contractual information requirements for traders. It also includes other provisions, such as on the right of withdrawal, delivery and payment, which are less relevant in the case of Online Social Media practices as examined in this study. The CRD will be relevant to practices that enable the conclusion of a contract between a consumer and an Online Social Media platform or third-party trader (for whom the Online Social Media platform acts as an intermediary). Online contracts qualify as distance contracts for the purposes of the Directive, and traders have to comply, notably, with the pre-contractual information requirements under Article 6(1) that contains a general obligation to provide information on specific elements related to the contract acts are -contractual information must nevertheless be provided to the consumer. While the CRD and the UCPD may overlap on the required pre-contractual information, the UCPD has a wider scope, in that it also applies at an earlier stage in which a contract is not yet intended by both parties (i.e. the advertising stage), which is not the case for the CRD. As concerns practices by OSM platforms identified in this study, the relevance of the CRD is limited to practices occurring at the pre-contractual stage. 2.3 The Unfair Contract Terms Directive (UCTD) oncluded between a seller or supplier and a consumer. The Directive contains general rules on which kind of contractual terms shall be regarded as unfair, and contains a non- exhaustive list with examples of contract terms that may be regarded as unfair. The practices observed that take place on OSM platforms are used before the consumer actually enters into a contract with third parties. In the absence of specific contract terms, the UCTD is not relevant. 2.4 The E-Commerce Directive The e-Commerce Directive 5applies to information society services, which can include the services provided by operators of OSM platforms. Article 5 of the e-Commerce Directive lays down general information requirements for service providers, while Article 6 lays down information to be provided in commercial communications. The lists of items set out in these two articles are minimum lists. Article 6 in particular requires Member States 5Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17/08/2000. EUROPEAN COMMISSION Directorate-General for Consumers 2018 EUR 9 EN to ensure that traders clearly identify promotional offers, such as discounts, premiums and gifts, where the service provider is established, and the conditions to qualify for such promotional offers. The e-Commerce Directive applies to “information society services“, defined in Article 2(a) as services within the meaning of Article 1(2) of Directive 98/34/EC, which in turn provided for remuneration, at a distance, by electronic means and at the individual 6The Directive will be relevant if a commercial practice involves the provision of a service and with respect to the OSM platform as a service provider itself. The e-Commerce Directive and the CRD apply in parallel: the CRD includes similar or more detailed requirements with respect to the description of the product (main characteristics, functionality and interoperability of digital content) and price. Generally speaking, providing this information in accordance with the Consumer Rights Directive is therefore sufficient to comply with the requirements of the e-Commerce Directive. There are exceptions as the e-commerce Directive additionally requires specific information about promotional offers (Article 6). The link between the e-Commerce Directive and the UCPD, in discussed where applicable throughout this report. 6The CJEU clarified that this does not require the service to be paid for by those for whom it is performed Case C-352/85 Bond van Adverteerders 1988 ECR 2085, an important precision for the mostly free of charge OSM platforms.
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