Puffery and Misrepresentation - Know Where to Draw the Line to Keep Your Online Business in Business!
© 2001-2021 Elena Fawkner
Those of us with online businesses know about the "itchy
finger" syndrome only too well. Grab the surfer's
attention within the first 20 seconds or forget it.
Spend any time at all learning about marketing online and
you'll be dazzled by the vast array of experts out there,
all making their invaluable knowledge freely available to
you. That's one of the greatest boons of the internet.
The sheer volume of information that's just waiting there,
for the taking.
And so you take advantage of all of this free information
and being the sponge that you are, absorbing everything
you can, you soon learn that the way to make a sale is to
employ the AIDA principle. Attention. Interest. Desire.
Action. Especially action.
According to the AIDA principle, the first step to making
the sale is to grab the reader's attention. There are
techniques for doing this. Using certain co-called
'irresistible' words in the headline of a classified ad
is a surefire way to get prospects' attention. You've
read about them, by now. They're words like YOU, SECRET,
REVEALED, EXPOSED and so on and SO ON.
Once the headline captures the reader's attention, these
ads are designed to go on to stir the interest and arouse
the desire of the reader for whatever it is being sold.
The well drafted internet classified ad focuses on the
benefits to the reader of the product in question, and
closes with a call to action.
So, all you have to do to make the sale is use words that
are going to get your reader's attention, incite their
interest, arouse their desire and prompt them to action.
Not quite as easy as it sounds but the theory is simple
enough. Internet Marketing 101 right? Well, let's
follow that up with a little Contract Law 101 too, OK?
In contract law, there is a concept known as "puffery".
Puffery is a self-evident exaggeration of the properties of
the thing being advertised and is not intended to be taken
literally. For example, "Put a tiger in your tank - buy
Shell". No one is seriously going to think that if you put
Shell gasoline in your car that, hey presto!, you're going
to find a real live tiger in your tank. Well, OK, maybe a
nut would, but the law in this area is concerned with what
the reasonable person would believe, not the nut.
The law recognizes that advertisers use puffery to get the
attention of prospective customers. So, if someone goes
to court wanting to sue Shell for breach of contract
because, although they put Shell in their gastank, they're
still tigerless, the court's going to throw the case out
because the "tiger in the tank" slogan was a mere puff, a
Puffery abounds on the internet as it does in advertising
offline. The internet brings a tricky new dimension to this
area of the law, though. The internet is still in its
infancy and tens of thousands of newbies come on line every
day because they've heard all the get rich quick stories and
they want their share.
The internet is not a level playing field as the offline
world is. Offline, we all have broadly similar life
experiences when it comes to judging what is a puff and what
is not. On the internet, though, our online experiences can
vary dramatically from one person to the next. Who is the
"reasonable person" when it comes to the online environment?
Is it the reasonable internet veteran or the reasonable
internet newbie? Or is it some reasonable person in
Think about this. What do you think when you see an ad that
says something like "You Can Make $50,000 In 60 Days!" Is
this mere puffery? Remember, a puff is a self-evident
exaggeration not intended to be taken literally. As
obviously outrageous as the "$50,000 in 60 days" claim seems
to you and me, it is not a SELF-EVIDENT exaggeration and it
most definitely IS intended to be taken literally, otherwise
why be so specific as to dollar quantum and time? Why not
"Get Rich Quick!"?
Contrast this with "Turn Your Computer Into an ATM!" This IS
an example of a puff. It is a self-evident exaggeration and
is not intended to be taken literally. No-one seriously
expects that their computer will turn into an ATM just
because they purchase so and so's new marketing ebook.
It is therefore obvious that whether a statement like "You
Can Make $50,000 In 60 Days!" could possibly be considered
a mere puff depends very much on how internet-savvy you are.
Anyone who's been online long enough soon learns that these
sorts of claims are made everywhere you turn and are
complete rubbish. So, you recognize them for what they
really are when directed to the market that you're a member
of .... puffery.
But what if you're NOT an internet veteran? What if you're
a newbie? You've heard all the claims about internet riches.
That's why you came online in the first place, to get your
share of the action. The newbie hears the claim and
believes it. Newbie forks over $160 to become a member of
the program that's going to make him $50,000 in the next two
months. He has just signed up for your you-beaut XYZ
Program in reliance upon that claim. Could he have a cause
of action against you for precontractual misrepresentation?
Depending on the law applying in the jurisdiction where the
contract was formed, you bet! (You do know that if you make
an offer to sell someone something and they accept it by
purchasing the thing from you you've just created a contract,
right?) Maybe it wouldn't be considered anything more than
a puff in your jurisdiction (state or country). But how do
you know where your purchaser is located? How do you know
what the governing law of the contract is? Is it where the
sale takes place? Where IS that, by the way, when it's
made electronically and buyer and seller are in different
countries? Is it where the money goes to or where it comes
from? Is it where the product is downloaded from or to?
Very difficult, very UNSETTLED questions.
As an American, you may have just sold something to an
Australian. Did you know that if your claim of fabulous
riches is not a mere puff you may have just engaged in
deceptive and misleading conduct under Australian law?
Did you know that the courts of the U.S. can apply
Australian law and vice versa?
Want to take the chance? I hope not. Don't expose yourself
or your business to this sort of liability. Don't make
outrageous claims. Sure, you can use puffery to get the
attention of your prospects, but keep your audience in mind.
If you're marketing to experienced 'net entrepreneurs you
have some latitude here. If you're marketing to absolute
beginners, be careful. Tell it like it is and keep the
puffery to a minimum. If you don't, your online business
could very well go up in smoke.
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