Page 305 - The Handbook of Persuasion and Social Marketing

Social Marketing and the Law 281

to disclose that only 15 percent of each contribution actually went to the
charity. In fact, over a seven-and-a-half-year period, the fundraisers raised
more than $1.1 million for the charity and pocketed more than $6 million
themselves. The court noted that unlike state statute cases, such lawsuits
for fraud did not unduly chill protected speech, because the state had the
burden of proving that the misstatement of fact was known to be false and
was made with the intent to deceive the listener. The court further noted
that requiring professional fundraisers to register with the government
(which most states do require), to produce annual public reports on their
activities, and to identify themselves as professional fundraisers when so-
liciting funds are all constitutional (Illinois v. Telemarketing Associates, Inc.,
2003).
This interest in preventing fraud extends beyond fundraisers. Assuming
a social marketing campaign is not commercial speech, it would not be
subject to laws and regulations regarding deceptive and unsubstantiated
advertising. Of course, to the extent such laws are enforced by government
agencies, those agencies also may lack jurisdiction or otherwise be reluc-
tant to act against a campaign that is part of or associated with government
programs. However, a private party could sue for trade libel (also known
as product disparagement). The complaining party would have to prove
that those issuing the statements knew they were false and made the state-
ments anyway, with the intent to cause injury to the complaining party
(Cain, 2012). This strict standard makes legal intervention rare and allows
free debate in the “marketplace of ideas” (Virginia State Board of Pharmacy
v. Virginia Citizens Consumer Council, 1976).
Although not related to a social marketing campaign, arguably the most
famous challenges of this type were the lawsuits against Oprah Winfrey for
remarks she made about beef and mad cow disease on her television show.
These lawsuits were brought in several of the 13 states that have food libel
laws. Most of these laws protect perishable food products (which might
not include beef) and substitute “a lack of scientific evidence” for the
“knowing falsity” standard of general trade libel. A majority of statutes also
replace actual malice with a “knew or should have known” falsity stand-
ard. The initial case against Winfrey was partially dismissed by the judge,
and the jury found her not liable on the remainder of the claims (Cain,
2012).
In additional to possibly being sued for fraud, social marketers might
also be sued for negligence. For example, if a firm developed a public ser-
vice announcement that encouraged intoxicated people to ride a bicycle
instead of driving, the firm might be sued for not recognizing that bicy-
cling under the influence of alcohol also is dangerous. Such a campaign