网_络社交媒体广告与营销习惯行为研究（英文版）_44页_1mb

报告摘要

Summary of the Legal Assessment of Problematic Advertising and Marketing Practices in Online Social Media

Core Content

This document presents a legal analysis of advertising and marketing practices on Online Social Media (OSM) platforms, focusing on their compatibility with EU consumer legislation. It is part of a broader behavioral study conducted under the European Commission's Chafea program, specifically examining the legal implications of various commercial practices on social media. The analysis is based on the Unfair Commercial Practices Directive (UCPD), with some reference to the Consumer Rights Directive (CRD), the Unfair Contract Terms Directive (UCTD), and the E-Commerce Directive.

Main Legal Frameworks

Unfair Commercial Practices Directive (UCPD)

Scope: Prohibits unfair commercial practices by traders, including misleading, aggressive, or lacking professional diligence.
Definition of Trader: Includes any natural or legal person acting for purposes relating to trade, business, craft, or profession, including OSM platforms and third-party traders using them.
Key Provisions:
- Annex I (Blacklist): Contains practices that are considered unfair in all circumstances.
- Articles 6 and 7: General prohibitions against misleading and aggressive practices.
Average Consumer Threshold: Defined as a reasonably well-informed, observant, and circumspect individual, influenced by social, cultural, and linguistic factors. The concept is not a statistical test but requires case-by-case analysis.

Consumer Rights Directive (CRD)

Scope: Applies to distance contracts, such as those concluded via the internet.
Key Provisions:
- Requires pre-contractual information to be provided in a clear and comprehensible manner.
- Applies to product and price information, though less relevant for OSM practices that occur before a contract is formed.

Unfair Contract Terms Directive (UCTD)

Scope: Applies to contract terms between traders and consumers.
Relevance: Not directly applicable to practices occurring before a contract is formed.

E-Commerce Directive

Scope: Applies to information society services, including OSM platforms.
Key Provisions:
- Article 5: General information requirements for service providers.
- Article 6: Specific requirements for promotional offers.
Relationship with UCPD: The "safe harbour clause" allows OSM platforms to avoid liability for certain practices if they meet specific disclosure requirements.

Key Problematic Practices Analyzed

3.1 Disguised Advertisement Practices

These practices aim to blend commercial content with non-commercial content, making it difficult for users to distinguish between organic and sponsored content.

Native Advertising

Mimics user-generated content in format and placement.
Often displayed in user feeds (e.g., Facebook) and may use standardized tags like "sponsored" or "promoted".
Legal Concern: The clarity of these tags is questionable, and whether they are sufficient to identify the commercial nature of the content is legally uncertain.

Influencer Marketing

Relies on individuals with high influence to promote products.
Often lacks clear disclosure, especially when influencers appear to be acting as consumers.
Legal Concern: May fall under the "disguised trading" prohibition in Annex I, point 22 of the UCPD if the influencer is acting on behalf of a trader.

Advertorials

Content that appears as editorial but is actually sponsored.
Often created and published externally (e.g., blogs, news sites) and then promoted on OSM platforms.
Legal Concern: Explicitly prohibited under Annex I, point 11 of the UCPD, but the definition is narrow, limiting its applicability to certain types of content.

3.2 Social Proof Practices

These practices manipulate consumer behavior by leveraging perceived popularity or credibility.

Artificial Boosting of Social Proof Indicators

Involves inflating metrics such as likes, shares, or reviews.
Legal Concern: May be considered misleading if not clearly disclosed.

Extrapolation of Social Endorsements

Using fake or manipulated endorsements to suggest product popularity.
Legal Concern: Could be deemed aggressive or misleading under the UCPD.

3.3 Data Gathering and Targeting Practices

These practices involve the collection and use of user data for personalized marketing.

User Tracking

Monitoring user behavior to build profiles.
Legal Concern: May raise privacy issues, though not directly covered by the UCPD.

Custom Audience Targeting

Tailoring ads based on user data.
Legal Concern: May be considered misleading if not transparently communicated.

Social Media Logins

Collecting user data through login processes.
Legal Concern: Can lead to data misuse, though not directly regulated under the UCPD.

3.4 Other Problematic Practices

Include misleading pricing, false claims, and hidden costs.
Legal Concern: May fall under the UCPD's general prohibitions, particularly Articles 6 and 7.

Key Legal Findings

Disguised Trading: The most relevant blacklisted practice under the UCPD for all three types of advertising (native, influencer, advertorials).
Uncertainty in Disclosure: While standardized tags exist, their adequacy in identifying commercial content is legally ambiguous.
Behavioral Insights: The study highlights the importance of understanding how the average consumer perceives and reacts to different types of content, which can influence legal interpretations.
Parallel Application of Directives: The UCPD and CRD apply together, with the UCPD covering advertising and the CRD covering post-advertising contractual obligations.

Conclusions and Recommendations

4.1 Disguised Advertising Practices

Native advertising, influencer marketing, and advertorials are likely to be considered disguised trading under the UCPD.
The legal clarity on disclosure is insufficient, requiring further guidance.

4.2 Social Proof Practices

Artificially boosting social proof indicators may be considered misleading.
The need for transparency in social endorsements is emphasized.

4.3 Data Gathering and Targeting Practices

While not directly regulated by the UCPD, these practices can be problematic and may fall under broader consumer protection laws.

4.4 Other Problematic Practices

These may also be addressed under the general prohibitions of the UCPD.

4.5 Non-Practice Specific Legal Policy Recommendations

The European Commission should consider integrating behavioral insights into consumer law.
Further clarification is needed on the disclosure requirements for disguised advertising.
The UCPD should be updated to better reflect the digital environment and consumer behavior.

Final Notes

The study emphasizes the need for clearer legal standards to address the evolving nature of digital advertising.
Behavioral experiments were used to assess consumer reactions, which can inform future legal interpretations.
The legal framework, while comprehensive, lacks the specificity required to fully address the complexities of modern social media marketing.

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