Customer testimonials and the law

Testimonials are a good way to reassure potential customers that your business is genuine, and your products or services are well-regarded by existing customers. By way of example, you can see ours here.

There are however a couple of legal issues you should bear in mind if you're thinking of collating and publishing testimonials on your website.

First, don't make them up!

Ethics and evidential issues aside, inventing testimonials is likely to make you a criminal under the Consumer Protection from Unfair Trading Regulations 2008 (which cover marketing aimed at consumers) or the Business Protection from Misleading Marketing Regulations 2008 (which cover marketing aimed at businesses).

Second, get consent to publish testimonials.

While unsolicited praise is very gratifying for a business owner, you should almost always ask for consent to publish, because:

  • the text of a testimonial may be protected by copyright (as a literary work);
  • if you want to use a customer logo, this will also usually be protected by copyright; and
  • if you want to use a personal name, as indeed you should, then the testimonial will constitute "personal data" under the Data Protection Act 1998.

At the risk of over-legalising, you might want to think about formalise the licence to publish testimonials. A formal licence should cover:

  • the basic right to publish - what, where and how?
  • a right to alter testimonials - e.g. to reflect changes in company names; and
  • a right to request the removal of a testimonial by the person giving it, which might be necessary where a great early experience of a business turns sour.

Consent could, for example, be covered by your website T&Cs or included in a special testimonial submission form.

A suggested clause is set out below.

x.1 If you submit a testimonial to us using [this form / our testimonials form], then you agree that we may publish your testimonial, together with your name and any logo that you upload using the form, on this website[ and on any successor website that we may operate from time to time], on such page and in such position as we may determine in our sole discretion.

x.2 You further agree that we may edit the testimonial and publish edited or partial versions of the testimonial. However, we will never edit a testimonial in such a way as to create a misleading impression of your views. [You may terminate this licence by giving to us 30 days' written notice of termination.] 

Comments

I'm a professional speaker and after I speak at a conference or event I normally pull out my phone and record testimonials from some participants. I normally just record what they think about the presentation or me as a speaker. Should I ask them if they give me permission to use this testimonial in my marketing material and record that on the same video file (without publishing that part, of course)? Or just the fact that they are giving the testimonial straight to the camera be enough to prove they are consenting on the testimonial?

They are consenting to the testimonial, but not necessarily to any particualr use of the testimonial.  Accordingly, I suggest that you get a specific recorded permission here. NB If you are relying upon consent to comply with data protection rules here, such consent may be withdrawn later.

Hi there - I work for a technology company who want to publish some customer quotes on their marketing material. The quotes are things customers have said to us, however, my company has decided not to credit the customer (or ask their permission) to avoid breaching copyright (if they said no etc.) - this seems a little dishonest to me, but also I am worried they are breaking the law. Are you able to clarify, please?

If the quotes are sufficiently original and substantial to attract copyright protection, then the way to avoid breaching copyright is to get permission. Use of copyright material without permission is a (crude) definition of copyright infringement.

If you include with the quotes information from which any individuals may be identified (eg individual names, sole trader company names) then there may also be privacy and/or data protection issues here.

Hi there - we have a lot of positive reviews on our public Facebook page. Is the copyright / data protection any different for these? We can add the above clause to our website T&Cs (which is also on our Facebook page) but would this still cover Facebook reviews? We'd like to use the positive statements in marketing materials.

Thanks in advance.

The first thing to do is to check the Facebook T&Cs to see what they say about the ownership and licensing of this type of content.

Thanks

hi there I am doing interviews with previous happy customers to feature on home page - so we can reassure future customers on some of their barriers to purchase.

we intend to give a small payment to cover the cost of their time to do the interview, not so they will give us positive feedback- we will already have establised without payment that they are a happy customer. 

Is this ok? 

Thanks

We're looking at adding testimonials to our website. To make the testimonials more 'personal' we wanted to use stock photos of people to put next to a few testimonials. Is there anything wrong with using stock images of people rather than an actual image/photo of the person leaving the testimonial?

Would you do this with the permission of the person providing the testimonial?

If a customer purchased a product (jewelry component)from a retail company, created jewelry using the purchased jewelry component and wrote a review of that component and included a picture of their creation on the retail company’s website,  can that company re-post the photo from the Review on social media sites with a link to purchase the component product without consent or credit to the artist? 

Using the photo of my work linking to the product item on their company site for marketing and sales of the component feels wrong. It feels like distorted “free advertising” for them without credit to me as designer/artist.  Does posting a review inherently “give permission” to the company to use the photo without violating copyright laws? 

That is, very likely, and infringement of the copyright in the photograph, which absent any transfer or relevant employment relationship will be owned by the person who took the photograph.  There could also be other IP rights in play, for instance copyright or design rights protection the jewelry itself.

Hi there, a supplier of ours has provided terrible customer service on two occasions in the first 6 months of the contract and I have left negative reviews online for them. They offered to release us from our contract (which we want), but then said that they would only do it if we improve or remove our negative feedback online. Essentially blackmailing us into removing the bad reviews! What would be the legal standing on this please? Thanks

It may be that the poor customer service amounts to a breach of contract, in which case you may be able to exit without their agreement.  You should review the contract document - or ask a lawyer to do so - to determine whether there has been a relevant breach.

I am gathering testimonials from clients by way of a questionnaire.  We would like to use some of the comments in marketing material - should there be a consent box on the questionnaire that clients sign to show consent?

Maybe, but not necessarily. Whilst under IP law you will need a licence to use the testimonials, and in one sense that licence requires consent, you may not want to use consent as your basis for processing under the GDPR, as consent under the GDPR is inherently withdrawable. An alternative approach would be to use "legitimate interests" as your basis for processing hte personal data. The best approach here will depend upon all the circumstances. Sorry if this is not a very useful answer.

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