Why astroturfing exposes your business to legal risk (hint: because it's illegal)*

astroturfing exposes brands to legal risk

The fallout continues following yesterday’s exposure of lobbyists boasting about the ‘dark arts’ they employ on behalf of clients, including the manipulation of Google results for relevant search terms. One of the claims which seems to have fuelled much indignation from commentators is that the agency sets up networks of fake blogs to publish positive content about clients, in order to ensure that people searching for the client’s name on Google will be presented with mostly positive results.

This practice is often referred to as astroturfing (fake grassroots campaign, geddit?) and needs to be carried out on a vast scale and sustained over a long period of time to be at all successful. Because of this, it’s not an especially cost effective tactic for most businesses.

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But efficacy aside, the main point I wanted to make is that astroturfing is flat out illegal in the EU and the US, if it’s done to promote a brand or product.* The EU Directive on Unfair Commercial Practices (2005) outlaws a number of activities around the idea of brands misrepresenting themselves online, which includes posting fake consumer reviews and astroturfing. A similar law exists in the US, and in a high profile 2009 case a plastic surgery firm was fined $300,000 for breaking it.

What’s surprised me is that for all the angry shouting about this issue over the past couple of days, few people seem to be aware that it is already illegal for brands to use these kinds of tactics.  I imagine this is a result of the social media land-grab that’s taken place over recent years, which has seen a lot of PR professionals repositioning themselves as social media experts, perhaps without fully understanding the new digital landscape in which they must operate.

The bottom line is that if your business employs these tactics, then it is exposed to legal risk and you should re-evaluate your digital comms strategy immediately.

 

*Doing it for political purposes is a different game entirely, and one which I’m not qualified to comment on from a legal perspective, but it’s definitely deeply unethical whichever way you look at it.

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  • http://twitter.com/bobvdmeulen Robert vdM

    Wow I had no idea this was illegal. Seems to go on a lot for sure. Not convinced it leaves a great impression for a brand anyway, because it’s irritating  searching around a topic and getting a load of badly written marketing fluff posing as an independent blog. 

  • Paulpaularnold

    this is a lot more widespread than people think – I’ve found undisputable evidence of video astroturfing – http://astroturfingevidence.wordpress.com a big company paid someone to make a testimonial video and show it like its done by a customer- its just lies being use to dupe other people and it should be exposed

  • http://www.GregoryKohs.com Gregory Kohs

    I’ve recently been informed by a couple of nut-cases who contend that a company paying someone to edit factual information into Wikipedia articles is “illegal astroturfing”.  Fortunately, I had a discussion with Betsy Lordan at the Federal Trade Commission.  She pointed me to a document that guides the use of endorsements and testimonials in advertising, which is where the “astroturfing” grounds are described.  The document describes “endorsement” as: 

    “For purposes of this part, an endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser and may be an individual, group, or institution.”

    Lordan went on to say, “if a person is compensated to provide an endorsement for a product in advertising, and if that financial relationship is not apparent from the context, it should be disclosed.”

    Therefore, one would be very, very hard pressed to interpret factual editing of Wikipedia as an advertising message or endorsement that consumers are likely to believe reflects the opinions (etc.) of someone other than the advertiser, since the factual editing wouldn’t even be construed as an advertisement or an endorsement.  Wikipedia doesn’t say, “User:XYZ says that Product ABC is the best widget on the market.”  Wikipedia typically says, “Magazine M says that Product ABC is the best widget on the market,” then provides a reliably-sourced citation to Magazine M.

    I think it’s important to separate foolish interpretations of isolated legal cases from rational understandings of what paid editing on Wikipedia actually constitutes in practice.

    • David King

      This is actually extremely informative. I’m glad you shared the exact text from the FTC. I agree that encyclopedic editing probably doesn’t fall under FTC rules, but there’s a fine line. Many inexperienced editors who are editing on behalf of their organization would border on this definition with promotional statements that aren’t supported by a citation, especially if those statements indicated an experience. So an experienced editor would be extremely unlikely to cross the line, but it depends on what exactly they write.