Advertising is an essential part of business. In an ever-competitive marketing environment, companies routinely make bold claims in hopes of piquing consumers' interest. Inevitably, some cross the line and find themselves in sticky legal situations for false advertising.
Even if lawsuits don't result from false advertising practices, disingenuous consumers can ignite nightmarish public relations problems, government investigations, and criminal charges.
The Internet's Impact on False Advertising Allegations
The Internet is a powerful advertising tool. Online advertising makes segmenting target audiences easy, reduces barriers of entry for small businesses, and gives advertisers global reach. With benefits like these, it's easy to see why digital marketing spend continues to increase.
Like all things, however, online advertising has its downsides.
Allegations of deceptive advertising may come from disgruntled consumers, opportunistic law firms, or government agencies. In today's age, consumers are better equipped to make false advertising claims than ever before.
With smartphones and computers, consumers can readily capture screenshots of things they find online. Although people have long been able to snap pictures of billboards or manually record commercials, these forms of documentation are a far cry from the convenience and immediacy offered by modern technology
Malicious attempts to “frame” and falsely accuse a company of false advertising are also not unheard of. Internet users can modify web content by using the "inspect element" tool or through an application like Adobe Photoshop. Websites' layouts, text, images, and other content can be modified within seconds. Although these changes are only visible to the user applying them, unscrupulous individuals could screenshot these modified pages to accuse you of misleading consumers and using illegal or unethical advertising practices.
Currently before the US Senate, the DETOUR (Deceptive Experiences To Online Users Reduction) Act will also increase awareness and bring misleading or underhand practices on company websites into sharp focus. Coupled with the increasing prevalence of class-action lawsuits leveled at company websites (even Beyonce is not immune), there's never been a better time to protect your business online.
Fighting Claims of False Advertising With Website Archiving
According to a 2019 survey conducted by the Pew Research Center, nine out of 10 Americans use the Internet. With the internet representing such an integral element of daily life, despite the element of risk they expose businesses to, websites are essential for surviving in the modern commercial landscape. Ignoring this direct channel to customers simply isn't an option, which means that the hypothetical challenges posed must be met with careful, proactive mitigation.
One of the most effective tools for fighting false advertising claims is website archiving, the process of documenting web pages to preserve their content indefinitely. In practice, website archiving involves capturing exact copies of web content and saving them on secure storage systems. This gives cast-iron proof of the content your website publicly displayed at any given time.
Popular Methods for Archiving Internet Content
Archiving websites and other online content has come a long way from screenshots stored on a desktop computer. To reap the full benefits of modern website archiving, you need to be able to capture not only individual pages, but an entire website at a particular moment in time. A few options exist, all with varying degrees of sophistication and protection – so what’s the best way to archive your website?
While some free tools (such as the Wayback Machine) exist, these forms of website archiving aren't automated and will require a fair amount of work as individual pages must be manually selected and saved. What’s more, the moment a single modification, edit or addition is made to a page, your record will be outdated, and it will need to be manually archived once again.
HTTrack makes the process slightly less painful; a full website can be quickly archived. However, the way in which content is captured means that more complex elements (such as embedded videos, Javascript or Ajax frameworks, web form flows, and password-protected pages) are highly likely to be unreliably preserved.
While it might seem reasonable to assume your CMS backup can provide a full record of your website content through time, there are a lot of limitations to this approach. From the inconvenient absence of text search (crucial when you consider the huge amount of historical content you may need to filter through in search of a challenged claim) to difficulties exporting metadata, a CMS should not be relied upon. When it comes to litigation surrounding false advertising, data taken from a CMS backup lacks the digital signature necessary to authenticate it, and so won’t be permissible as evidence in a court of law.
By contrast, automated website archiving, such as that offered by Pagefreezer, ensures a consistent and complete record of all modifications to your site. Chronological versions of any page are instantly accessible, and simple to locate. Advanced search enables keywords to be leveraged, and all information is easily exportable (complete with metadata.) Most pertinently, if fighting accusations of false advertising, this record can provide acceptable evidence and help maintain full compliance in the more heavily regulated sectors.
Why Trusting Public Internet Archives Is a Risky Business
In 2015, Buzzfeed published an article titled The King of Bullsh*t News. The article alleged that Central European News pumped the Internet full of stories that were "inaccurate or downright false."
Buzzfeed further stated, "They're often bizarre, salacious, gruesome, or ideally all three." Central European News' combination of "unremarkable, genuine news stories" with these clickbait-laden articles may have led readers to believe their low-quality, inflammatory articles were true.
In Jan. 2016, Central European News owner Michael Leidig filed a complaint in the United States District Court for the Southern District of New York against Buzzfeed. Leidig sought $11 million from the news company for libel.
Leidig thought he wouldn't need to archive the content because the article was open to the public domain. After all, Buzzfeed is one of the Internet's most popular websites. In court, the Central European News owner attempted to use the Internet Archive's copy of the 2015 article as evidence.
In Dec. 2017, U.S. Magistrate Judge Gabriel Gorenstein determined that Leidig "provided no evidence or argument showing that the data generated from the website is reliable, complete, and admissible in court."
Website Archiving Solves Record-Keeping Requirements
Financial services is an industry in which the need for website archiving is very clear. A financial services firm must keep accurate records of website content in order to show that it did not make any false claims on its site.
After Enron's long-running schemes were unraveled in 2001, the United States Congress passed the Sarbanes-Oxley Act of 2002. This massive document instituted hundreds of individual regulations that clamped down on financial services industry competitors.
The Sarbanes-Oxley Act established comprehensive record-keeping reform to hold accounting firms and major financial institutions accountable.
Records must be kept for at least seven years. They must also be kept in the same medium in which they were originally made. As such, properly preserving websites isn't as simple as capturing a screenshot; web pages have to be preserved, and ultimately presented, in a format that will be accepted by auditors.
Website archiving is one of several tools financial industry regulators use to promote compliance. Strict website archiving methods are used to ensure records are of defensible quality and contain crucial components like digital signatures, timestamps, and associated metadata. Attempting to archive websites via screenshots or without tried-and-true techniques will accomplish practically nothing in terms of constructing a false advertising defense.
Shield Your Business From False Advertising Claims With Automated Web Archiving
False advertising claims can be difficult to handle. Website archiving provides a powerful means of battling such allegations – assuming your methods don’t lead to digital evidence that’s not permissible in court. An automated website archiving service, such as Pagefreezer, gives you total certainty that whatever contentions may come your way, you’re in possession of a compliant, convenient and complete record of your website.
Want to learn more? Check out the article below, which explains how to collect website, social media, and team collaboration content to meet recordkeeping requirements and prepare for any potential legal matters.
