Disclosure, Endorsement, and Identity in Social Marketing

63 Pages Posted: 1 Feb 2009 Last revised: 1 Jul 2009

See all articles by William McGeveran

William McGeveran

University of Minnesota Law School

Date Written: January 28, 2009


"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.

Keywords: trademark, right of publicity, privacy, consumer protection, reputation, social networks

JEL Classification: O38

Suggested Citation

McGeveran, William, Disclosure, Endorsement, and Identity in Social Marketing (January 28, 2009). University of Illinois Law Review, 2009, Minnesota Legal Studies Research Paper No. 09-04, Available at SSRN: https://ssrn.com/abstract=1334406

William McGeveran (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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