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.

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