41 W. St. U. L. Rev. 115 (2013-2014)
Consumers as Marketers: an Analysis of the Facebook Like Feature as an Endorsement

handle is hein.journals/wsulr41 and id is 119 raw text is: 


     Consumers as Marketers: An Analysis of the

     Facebook Like Feature as an Endorsement


                                Chang Zhou*
    I. INTRODUCTION  ........................................................  115
    II. SOCIAL MEDIA ADVERTISING AND THE LAW ........................... 118
       A. The Facebook Like Feature and its Pitfalls .................... 118
       B. The Federal Trade Commission Act ............................. 119
       C. The Guides Concerning the Use of Endorsements and Testimonials
           in A dvertising  ..................................................  12 1
       D.  W hat About Fraley v. Facebook? ............................... 124
  Ill. LEGAL IMPLICATIONS OF THE LIKE FEATURE ......................... 125
       A. Greater Scrutiny on Social Media Advertising ................... 125
       B. The Like Feature is an Endorsement as Defined by the Guides . 126
       C. A Sponsored Story Advertisement is a Deceptive Practice under
           Section 5 of the  FTC  Act .......................................  129
           1. An endorsement is a representation, omission or practice ..... 129
           2. Sponsored Story Advertisements are Likely to Mislead
               Consumers and the Consumer's Interpretation is Reasonable.. 130
           3. Sponsored Story Advertisements as a Practice are Material. 131
  IV. THE NEED FOR CLARIFICATION IN THE GUIDES ......................... 133
       A. The Guides Should Include Examples Based on the Facebook
           L ike Feature  .................................................  133
       B. The Commission Should Require Clear and Conspicuous
           Disclosures on the Advertiser's Facebook Page for Every
           Sponsored M essage ............................................ 134
   V. CONCLUSION........................................................... 135

                             I. INTRODUCTION

       Facebook has significantly aided the paradigm shift in advertising over the
past several years. Specifically, it has changed how businesses communicate with
their target demographic. Where the old marketing model was based upon unilateral
communication from the brand to the consumer, social media marketing, the new
marketing model, is based upon social influence in which the consumer drives the
message.' A message to consumers on social media is presumably more effective

* J.D. Candidate 2014, American University Washington College of Law; B.A 2010, Pennsylvania
State University.
       I would like to thank Yuki Haraguchi, my editor, for guiding me though the initial writing
process. I would also like to thank my parents, Kaifeng and Zimei, and boyfriend, Justin, for all their
support.
1.  See, e.g., Alex Holevas, Marketing: Same Game, But Easier Now, WEALTH PROi-ESSIONAL (Mar. 8,
    2012), http://www.wealthprofessional.com.au/article/marketing-same-game-but-easier-now- 119408.

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