Does Truth In Advertising Still Apply To User Generated Ads?

from the legal-permutations dept

Fri, Feb 1st 2008 4:43am — Mike Masnick

From a purely academic standpoint, it really is fun to see how modern technology is making life difficult for those who rely on old and potentially obsolete laws. However, the decisions made concerning these laws may have a pretty wide impact. We've discussed in the past the pitfalls of asking fans to create "user-generated" ads, but a new lawsuit raises a very interesting legal question. If you ask people to make their own ads for your product, how do truth in advertising laws apply? It's probably not much of an issue if fans are simply going out and creating an ad for fun on their own -- but what if you encourage it? Plenty of big name brands have been setting up contests, getting people to create commercials for them. Yet, when sub shop chain Quiznos did that, competitor Subway sued them, claiming that many of the ads made exaggerated in false claims about Subway's sandwiches. Quiznos, for its part, claims that thanks to the safe harbors of the Communications Decency Act, it's not liable for the content created by the participants in the contest. Subway, on the other hand, argues that by encouraging such actions with a contest, Quiznos has overstepped the boundary, and violated its trademarks. While you can see the reasoning behind Subway's argument, it's hard not to side with Quiznos on this one. No one is going to take most of the user-generated ads seriously -- knowing that they're designed to poke fun at Subway. Also, any attempt to expand "truth in advertising" type rules to fan-created ads is going to cause all sorts of unnecessary problems. Still, when politicians were first writing up trademark laws and truth-in-advertising laws, I'd imagine the possibility of user-generated advertisements never even crossed their minds.

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Filed Under: advertising, safe harbors, truth in advertising, user generated content
Companies: quiznos, subway

18 Comments

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Sponge Monkey, 1 Feb 2008 @ 5:08am

Heh
We love the suit ...
because it's good to us.
We love the suit.

I forgot the rest ... something about being crunchy
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moe, 1 Feb 2008 @ 5:24am

I usually agree, but ...
I usually agree with you Mike, but I'm not too sure this time around.

No one is going to take most of the user-generated ads seriously -- knowing that they're designed to poke fun at Subway. Also, any attempt to expand "truth in advertising" type rules to fan-created ads is going to cause all sorts of unnecessary problems.

You're assuming that everyone is going to know that the ads are user-generated, and making an even further assumption that they'll know the ads were designed to poke fun at Subway. IMO, those are tenuous assumptions. The average viewer won't automatically know this when the ad appears on tv.

In regards to the second statement, as soon as Quiznos took an active role in using the ads then they became a party to the act. Quiznos did this in two ways - they put the content up on their website instead of letting users upload it to their website or YouTube, and they used the winning ad in a TV commercial. Once Quiznos took an active role, it doesn't matter who made the ad because Quiznos used it. Using your logic, one could make the same arguments about truth in advertising when it comes to using ad companies. After all, Quiznos only encouraged the ad company (in the form of money) to make a commercial for them.
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Capoeirista, 1 Feb 2008 @ 5:27am

How do you draw the line?
The problem is, where do you draw the line? What if Subway launch a contest for user-generated content with a prize of $100,000 (or whatever a professional ad costs these days)? Is it still fair to call it user-generated content?

"No one is going to take most of the user-generated ads seriously"

I can't help but feel that you are crediting the ad-viewing public with more intelligence than they may actually have.

I'mnot saying Subway is 100% right, just that it's a tricky one to call.
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comboman, 1 Feb 2008 @ 5:36am

laws should apply equally to all
Also, any attempt to expand "truth in advertising" type rules to fan-created ads is going to cause all sorts of unnecessary problems. Still, when politicians were first writing up trademark laws and truth-in-advertising laws, I'd imagine the possibility of user-generated advertisements never even crossed their minds.
I think you have it backwards. No one is trying to "expand" these laws, the laws do not specifically apply only to "professional" ads only. Quiznos (or whoever) should be checking these ads for accuracy, obscenities, libelous statements, etc. before posting them.
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duderino, 1 Feb 2008 @ 6:13am

Re-write the law
That is why the constitution should be re-written every 10 years. Same as every national law. The politicians didn't expect the iPod or playstation.
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David McMillan, 1 Feb 2008 @ 6:13am

Hahah what a joke!
The way the phone companies, cable companies and some retail outlets do to their advertising in Canada, there is no truth-in-advertising.
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Hellsvilla, 1 Feb 2008 @ 6:23am

Sponsorship
As long as quiznos is sponsoring the user generated content, it became responsible to monitor it, and only sponsor the ads which are not foul play. That means not linking to them from their own site, removing them from votership in the contest, and most importantly, not hosting them itself.
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Alimas, 1 Feb 2008 @ 6:43am

Quiznos Dropped the Ball Here
I think Moe's right, giving too much credit to the public.
But thats kind of regardless anyway, as the final point is that it is a Quiznos commercial. Regardless of who actually did the work to make it, Quiznos used it as part of their advertising campaign and thus accepted responsibility for its content. If the material is in violation, so is Quiznos.

That would be like Ford asking me to personally design a car in my free time, them taking my model and mass producing it and then claiming no responsibility for all the resulting deaths that would ensue (I don't know how to design a car) cause I wasn't part of their company.
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Anonymous Coward, 1 Feb 2008 @ 7:08am

Re: Re-write the law
Every 10 years? Let me guess you are 13 or 14?
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Anonymous Coward, 1 Feb 2008 @ 7:14am

Two bits
The moment a company puts user-created advertising into advertising slots they've purchased it becomes paid advertising. Someone who donates their homemade adult video to someone else who puts it on TV during prime time will still be in violation of the CDA.
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Anonymous Coward, 1 Feb 2008 @ 7:15am

Two bits
The moment a company puts user-created advertising into advertising slots they've purchased it becomes paid advertising. Someone who donates their homemade adult video to someone else who puts it on TV during prime time will still be in violation of the CDA.
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JB, 1 Feb 2008 @ 7:19am

Direction
Quiznos didn't just ask people to make ads for their product, the contest rules said that the ad must contain certain content, leading to the allegedly false claims.

Then they say "sorry, but we're not responsible for user-generated content"??
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Subway Cust, 1 Feb 2008 @ 7:28am

Quiznos
I've stopped eating Quiznos after there ads where they thought it was funny to starve the pet birds to death.
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gary, 1 Feb 2008 @ 9:46am

Re: Re-write the law
Haha... WTF!? What are you talking about dude? What does an iPod or Playstation have to do with re-writing the constitution? It's the courts decision to interpret the law. Politicians should stay away from re-writing anything unless the courts find it doesn't apply or needs revised.
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Anonymous Coward, 1 Feb 2008 @ 10:52am

The best way yet to measure the implosion of the T
Maybe Marc Andreessen could weigh in on this subject...

http://blog.pmarca.com/2008/01/the-best-way-ye.html
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Hero, 1 Feb 2008 @ 11:56pm

So Quiznos actually ASKED for ads that bashed Subway???

Quiznos isn't responsible for ALL submissions but they ARE responsible for any false claims in the ones that they chose to show!
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Jake, 6 Feb 2008 @ 3:32am

Truth in advertising?
Surely truth in advertising died years ago.. For example this ad http://www.adimade.com/view.php?vid=64 where a John West employee fights a bear to get the best salmon... Or is this really how John West get their produce?
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