Careers

Experiences

Industries

Offices

Our Firm

Pages

Our People

Updates

Practices

Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

If you saw this post on the Facebook or Twitter stream of your friend--or your child--how would you react?

contentpilot/introduction

I <a href="http://www.wassom.com/doritos01.html" target="_blank" rel="noreferrer noopener">recently blogged about</a> the FTC complaint filed against PepsiCo and Frito-Lay over its series of Doritos Late Night digital marketing campaigns.&nbsp; That prior post focused on the augmented reality portions of that campaign.&nbsp; But also attacked in the complaint were two social media-based Doritos promotions: Hotel 626 and its sequel, Asylum 626.&nbsp; These allegations raise a host of additional issues that are highly relevant today, as marketers get ever more creative in using social media to get the attention of their audiences in a world already saturated with digital content.

core/paragraph

&nbsp;The Hotel 626 and Asylum 626 Campaigns

core/heading

Attached to the FTC complaint are <a href="http://case-studies.digitalads.org/ftc-complaint/" target="_blank" rel="noreferrer noopener">videos </a>produced by the agency responsible for these campaigns.&nbsp; They provide frank insight into the intent behind the promotions and how they functioned.&nbsp; The description that follows was drawn from those videos.&nbsp; (It should be noted, however, that PepsiCo hasn't yet responded to the complaint on its merits, so we don't necessarily have all the relevant information.)

<a href="http://hotel626.com/" target="_blank" rel="noreferrer noopener">Hotel 626</a> is an online promotion that first launched in 2008, and appears to still be available.&nbsp; It was a web-based, interactive horror story designed "to scare the crap out of teenagers."&nbsp; The graphics and game play appear truly cutting-edge, putting&nbsp; Hotel 626 on par with other popular FPS (First-Person Shooter) games. The horror theme coincided with Doritos' decision to bring two chip flavors "back from the dead," and the 626 name derived from the fact that the site is only available from 6 p.m. to 6 a.m.&nbsp; Access to the site is free, but certain content can only be unlocked with codes found on specially marked bags of Doritos.

The site puts players inside a hotel populated with such attractions as psychotic madmen, ghosts, and demon babies.&nbsp; To escape, players needed to call a number on their cell phones, prompting a breathy voice to give them real-time directions as they raced through empty halls and spooky rooms.

Another innovative technological twist was the site's use of players' webcams.&nbsp; According to the producers' videos, the webcam snaps photos of players "when they least expect it," and displays those photos to the user later in the game, in the context of "a serial killer's lair."

dor08

core/image

The Asylum 626 sequel followed a similar arc, but took the social media integration several steps further.&nbsp; Upon registration, the game asks users to allow Asylum 626 to post content on their Facebook and Twitter accounts.&nbsp; That led to auto-posted content like what you see above.&nbsp; The game also uses Facebook Connect to randomly draw photos of two of the player's friends into the game.&nbsp; Players are then asked to choose which friend to "save" and which to let suffer a grisly doom, leading in turn to auto-generated posts like this:

By all indications, the promotions were a resounding success.&nbsp; The average user visit lasted an amazing 36 minutes, and the videos boasted that they sold over 5 million bags of Doritos, "without showing a single corn chip."

The primary gripe raised by the consumer watchdog groups behind the recent FTC complaint was that these campaigns were too "immersive"--in other words, that PepsiCo delivered entertainment that was so engaging and engrossing that it caused teens to forget they were buying and eating Doritos.&nbsp; If the FTC takes action on these claims, either it or the courts may eventually decide whether tying Doritos bags to interactive content is materially different from enticing kids to eat sugary cereal so they can get the plastic toy inside the box.

To me, the more interesting questions are raised by the games' use of Facebook and Twitter to auto-post disturbing content under the players' names.&nbsp; Messages such as "[User] desperately needs help" have only one apparent purpose--to spread the spookiness, so to speak, and shock or entice others into discovering the games.&nbsp; Now, other teens might find this instantly hilarious.&nbsp; And those who know anything about the promotions may recognize the #626 hashtag or other indicia of pretense, and recognize the tweet for the prank that it is.

But what about those who don't get the joke?&nbsp; The internet is already replete with examples of people who posted similar content for real, including an actual <a href="http://www.inquisitr.com/76059/twitter-suicide-note/" target="_blank" rel="noreferrer noopener">suicide note on Twitter</a>, Facebook posts that<a href="http://www.cbsnews.com/8301-504083_162-20045431-504083.html" target="_blank" rel="noreferrer noopener"> reported a home robbery in progress</a>, and tweets <a href="http://www.inquisitr.com/29191/woman-twitters-through-bank-robbery/" target="_blank" rel="noreferrer noopener">from the middle of a bank robbery</a>.&nbsp; Parents or friends who see pleas for help on someone's profile may react with panic, call the police, or take some other similar action before catching on to the prank.

Could anyone be liable under those circumstances?&nbsp; One hot issue right now is whether posting content under someone else's name online amounts to identity theft.&nbsp; That might be a stretch here.&nbsp; We don't know enough at this point about the fine print that Asylum 626 users had to click through in order to use the game.&nbsp; But chances are good that at some point, they agreed to let the game post under their own names, and that it told them at least something about the type of content that would go out.

So could the users themselves be liable for freaking out their friends and family?&nbsp; Again, it's hard to say in the abstract whether posts like this could support an "intentional infliction of emotional distress" or similar claim.&nbsp; But it's equally hard to predict how people are likely to react in any given circumstance, or how convincingly the fake posts might read.

These issues will only continue to grow in importance, because it turns out that--<a href="http://www.wired.com/threatlevel/2011/09/toyota-punkd/" target="_blank" rel="noreferrer noopener">as recently reported by Wired</a>--PepsiCo and Frito-Lay aren't the only companies being accused of using unorthodox methods of getting attention through social media.&nbsp; In August 2011, <a href="http://www.wired.com/images_blogs/threatlevel/2011/09/Duick-v.-Toyota.pdf" target="_blank" rel="noreferrer noopener">a California Appeals Court allowed a lawsuit alleging intentional infliction of emotional distress to proceed</a> against Toyota over an elaborate prank its marketers played on an unsuspecting woman.

Out of the blue one day, Amber Duick began receiving frightening emails from a strange, 25-year-old Englishman on the run from the law.&nbsp; This man had her home address and said he was on his way there to hide out.&nbsp; The man didn't really exist, but the people who created him went out of there way to make him appear real--even sending Duick messages purporting to be from the owner of a motel that the man had trashed on his way to Duick's house.

She came to find out that it was all an elaborate prank arranged by a friend through <a href="http://YourOtherYou.com" target="_blank" rel="noreferrer noopener">YourOtherYou.com</a>, a site run by Toyota's ad agency.&nbsp; The site encouraged users to submit their friends' personal information so they could be targeted by one of five fictional characters for five days.&nbsp; <a href="http://www.wired.com/threatlevel/2011/09/toyota-punkd/" target="_blank" rel="noreferrer noopener">The agency went to extraordinary lengths</a> to make the harassment seem real, even going so far as to record an album for the band in which one of the fictional characters supposedly played.

Before the messages began, Duick had received an email invitation to participate in a "personality evaluation," and the terms of service in that email made reference to an upcoming "interactive experience." Toyota pointed to this as Duick's consent to the prank. The court, however, found that language too vague to enforce against Duick.

Again, this case isn't over yet either.&nbsp;&nbsp; Just because Duick's case survived a motion to dismiss doesn't mean that she'll ultimately prevail on the merits of her case, any more than we can know what will happen with the Doritos complaint.

But these two examples raise important issues that marketers should take to heart. &nbsp; Social media derives its power from relationships.&nbsp; Relationships are built on trust.&nbsp; And when we extend trust to our friends online, we make it that much easier for them to deceive us, either directly or through misleading content they allow to be posted under their names.

Marketers have been trying to tap into the trust and credibility inherent in social relationships for years.&nbsp; Now a few clever marketers are trying the counter-intuitive approach of breaking that trust.&nbsp; That technique is sure to draw attention.&nbsp; Whether it turns out to be the type of attention they hoped for remains to be seen.

Augmented Legality

Emerging Media and Technologies

Partner

Brian D. Wassom

Information Technology Transactions

When Do Social Marketing Pranks Go Too Far?

Warner Norcross + Judd LLP is responsible for the contents of our advertising and this website. Please read our full <a href="/privacy-policy/" aria-label="see privacy policy">privacy policy</a> available on our website. If you have any questions or comments about our website or our Privacy Policy please contact us at <a href="mailto:info@wnj.com">info@wnj.com</a> or 616.752.2000.

When Do Social Marketing Pranks Go Too Far?

professionals