I was recently invited to provide informal pro-bono advice to a law firm organizing a class action lawsuit against JUUL – a supplier of vaping products. Part of their argument was the idea that JUUL were engaged in unlawful viral marketing – inciting peer pressure by using advanced marketing techniques.
Certainly, brands have always sought to make their products ‘look cool’ to influence adoption, but can we really make the argument that in some situations persuasive content could be construed as ‘unlawful’? The legal landscape as far as civil liability for unlawful social media marketing is understandably embryonic. Although some cases have talked about viral marketing, none have yet put forward a substantive opinion.
The idea of making something appear ‘cool’ to influence sales is of course not new. The infamous Marlboro Man exemplifies this idea, creating favorable brand associations that likely influenced the purchasing of the cigarettes. But things have advanced since the old days of advertising – we not only know a lot more about persuasion techniques, we also have more efficient channels through which to deliver our messages. Notably, social media.
I will not attempt in this article to provide a legally accepted definition of ‘unlawful marketing’, nor make an argument against the ethical nature of marketing techniques used by Vape product vendors. Instead, I will address the issue of whether modern marketing techniques, such as viral marketing, could possibly be used to influence an individual’s decisions to adopt the usage of a product, beyond the reasonable limits of their mindful control.
Obviously, the scope of a consumer’s product adoption control lies on a continuum with full control at one end, and little or no control at the other end (complete submission). The question for legal professionals is what degree of persuasion is acceptable in terms of manipulating people’s decision making. Or put differently, is it fair, or even possible, to influence a consumer’s decision-making beyond a reasonable decision they would have otherwise made under their own free will?
Viral marketing is relevant in answering this question, since it is widely regarded as the most effective form of marketing. Essentially viral marketing is branded content that is designed to invoke engagement. Specifically, when we measure how ‘viral’ content is, we are concerned with how sharable the content is (usually measured by the number of shares). The concept is aligned with the more traditional marketing concept of word-of-mouth. This type of marketing is acknowledged by marketers to be the holy grail of marketing techniques, since consumers tend to be persuaded by their peers more effectively than by the brand. In other words, a fellow consumer bragging about a product is far more persuasive than a message communicated directly from the brand. Shared content is endorsed content. Consumers notice that it has been shared by other consumers, and this adds weight to the persuasiveness of the content, including branded marketing materials.
The system that facilitates the spread of viral content is social media. Whereas once-upon-a-time word-of-mouth typically occurred between friends, family, and colleagues, nowadays modern consumers take cues from strangers, and in much greater numbers. It is not unusual for social media users to have hundreds of connections, and social media algorithms reward popular content by showing it to more people.
The term ‘social proof’ is used to describe the psychological effect that perceived public endorsement has on evoking social norms (compliance). When people perceive a behavior is normal, they are more likely to adopt the behavior. People are more likely to perceive something is normal when they perceive a significant number of people with whom they identify with are doing the behavior. Content that has many shares on social media signals social acceptance, and therefore increases the likelihood of the content being shared. The social acceptance may also build strong favorable associations with the brand, and ultimately adoption.
People’s tendencies to be influenced by social proof is likely biologically programmed into the human psyche, meaning the effectiveness of social proof on people’s behavior is extremely robust. At one time, following the crowd and taking notice of what your peers (tribe) was doing was likely tied to survival. Sharing food production tasks and predator protection strategies is more effective as a group. From an ethological perspective, humans have adapted to follow their peers – particularly those who are perceived to be higher up the social ladder. This explains the effectiveness of modern marketing techniques such as influencer marketing. People who are admired, such as social media influencers, have significant sway when it comes to product endorsement. So do people perceived to be socially successful.
So, the key to viral marketing is creating content that evokes sharing motives, and therefore creates social proof through public endorsement. How do marketers do this? There are several techniques, but two that are particularly relevant to social media marketing are arousal and self enhancement.
Research has found that arousal increases people’s motives to share information with others. Arousal is essentially how awake, or aware, someone is. On a continuum, someone who is super aroused is manic, and someone who has no arousal is in a coma. There are multiple ways to invoke arousal, though with digital means we are restricted to visual stimuli, and occasionally sound. A common method of evoking arousal is to create content that evokes an emotional response, since an emotional response is usually arousing. Envy is evoked through beautiful young people, joy through imagery suggesting fun, and intrigue is evoked by controlling the release of information through storytelling. Each of these techniques may increase sharing.
From a biological perspective, the reason why arousal facilitates sharing appears to be related to a primitive part of the brain that likely controls feeling-based behaviors, known as the amygdala. The amygdala becomes active when aroused. The role of the pre-frontal cortex, a more advanced part of the brain, is to moderate behaviors invoked by the amygdala, since these behaviors are usually more automatic than thoughtfully considered. The more aroused the amygdala becomes however, the less effective pre-frontal cortex signals become, increasing the likelihood of feelings-based behavioral patterns over carefully considered behavioral patterns. This is why extremely upset people are more likely to perform a behavior they later regret – the upset person’s amygdala is highly aroused, and less respondent to the signals sent from the pre-frontal cortex to provide reason and restraint.
Neuro-scientists have discovered that people with larger amygdalae tend to have larger and more complex social networks, and people with damaged amygdalae are socially inept, suggesting that the amygdala also controls social behaviors, though the details of exactly how arousal enhances social sharing remains unknown. Speculation suggests it may be related to the risks associated with judgement and acceptance. What matters is that the greater the arousal someone feels, the more likely it seems that they will share information with others, and the less control they seem to have over their behavior.
Self enhancement is a tendency for people to adjust their thinking towards one’s desired state or ideal self, and thereby protect one’s self esteem. Viral marketers produce content that helps people to self-enhance to stimulate sharing. For example, content that allows an individual to share something positive about their character, such as seeming to be ‘cool’ or clever in some way, usually earns a high number of shares. People usually want to affect others around them in a positive way, so marketing content that affects people with positive emotions is particularly sharable, since earned engagement from sharing, such as likes and comments, has a positive effect on people’s self-esteem. Recognition and respect are powerful motivators.
Young people are particularly sensitive to self-enhancement opportunities since they are more likely to be positioning themselves against their peers in a social hierarchy.
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To revisit the question of whether it is fair to influence a consumer’s decision beyond the reasonable limits of their mindful control, then we first need to examine the extent to which marketing content designed to influence on an individual’s behavior invokes an automatic response. One might then argue that invoking an automatic response is unfair, since the individual was not in full control of their behavior. Though a somewhat tenuous argument to make.
The amygdala was traditionally implicated in automatic responses to fearful situations (‘fight or flight’) but more recent research suggests it may also activate automatic behaviors across a wide variety of positive and negative emotions (or affect). If accurate, this would suggest that activating the amygdala through arousing marketing content might invoke a more automatic, less mindful response than if arousal is not evoked. In other words, if the arousal invoked through marketing means was strong enough, it is possible that the consumer’s response could be beyond the mindful control normally associated with considered and reasoned actions. Our own research (in press) has found evidence to suggest that arousal increases the likelihood of disclosing information that one later regrets, adding weight to the idea that arousing stimuli makes people less likely to think through the consequences of their actions.
The issue of peer pressure used to influence purchase decisions through social media falls into the category of social norms and self enhancement. By emphasizing the comparative success of peers who are using a product, a brand is able to invoke self enhancement needs – essentially evoking self-reflection through social comparison. The result is conformity – greater likelihood to follow the crowd. The argument of whether using imagery that emphasizes social comparison to lower self-esteem is ethical again rests of the extent of self-control. As described earlier in this article, social conformity is a powerful motivator, though whether one can make the argument that the temptation to conform is beyond the limits of an individual’s mindful control seems philosophical. Ask a philosopher, and they might just as well argue that free will is an illusion, suggesting that all modern marketing is simply attempts to influence behaviors through feelings. Possible? Yes. Ethical? Let’s wait for the courts to decide.
Disclaimer: I reserve the right to alter my opinions, and any opinions expressed in this article should not be construed as advice.
Dr. Brent Coker is an Online Consumer Psychologist. With a PhD in Electronic Commerce ("Predicting Internet Purchase Intention"), Dr. Coker's research focusses on consumer behavior within the realm of psychology, digital business models, and marketing. He currently teaches Digital Marketing and Digital Business Models at the University of Melbourne.
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