You may recall that last year year, astroturfing, sock puppetry and other forms of fake-blog bullshit were made illegal – at least, illegal if they're carried out by companies.
Section 22 of the Unfair Commercial Practices Directive is absolutely clear, making it illegal to go around "falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer".
Has it made a difference? Nope. Just ask Mark.
Mark is a blogger, and a few weeks back he did a typical blogger thing. He'd been mucked about by a health club, which messed up his cancellation and continued to charge him, so he vented his frustration on his blog.
Time passed, and then a new poster turned up, disagreeing strongly with what he'd written in a number of messages. You're talking out of your backside, the commenter told him. I've been dealing with that firm for a million years, and they're bloody great, he said. They're the nicest, smartest, funkiest, sexiest company on the face of the Earth, and they're probably the best company in the universe, too. You're a big fat liar.
Mark idly Googled the commenter's name. Surprise! He's a middle manager in the very company Mike was blogging about. So Mark did another typical blogger thing. He blogged about that, too, outing the manager on his blog and accusing him of astroturfing. That's when the legal letters started.
You know the drill. You're defaming our client, the letters said. Take down the posts, or we'll sue you until you squeak.
The thing is, the lawyers didn't say that Mark was wrong. Quite the opposite. The poster was indeed a manager of the very health club Mark had blogged about. They didn't dispute that.
However, they said that the company hadn't asked the manager to post anything and certainly didn't approve of such behaviour. Because Mark had named the company, his posts about astroturfing were therefore defamatory.
Was Mark in the right? I think so, but that doesn't really matter. Mark wouldn't get legal aid to fight a defamation case, so if he went to court and lost, the costs would ruin him – and even if he won, the costs would still ruin him.
He could try to get the firm prosecuted for astroturfing, but all that stuff about £5K fines and two-year jail sentences is for the really bad guys. In a case like this, it'd be tough to persuade Trading Standards or the OFT to even investigate; if they did, the punishment wouldn't be anything more severe than a stern letter.
Faced with a battle he couldn't possibly win, Mark took the posts down. It doesn't matter that his posts were honest and accurate, or that the accusations he made were absolutely true. All a company needs to do when caught astroturfing is to say "we knew nothing about it" and send the lawyers in.
As ever, when it comes to companies behaving badly online, might beats right every time.
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First published in .net magazine, Issue 185
Now read Battlefields and bikes: blogging from the edge
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Your comments (4) Click to add a new comment
kasino72
February 10th 2009
4. Lefty, I think there are two problems here: the first is that the penalties for firms are tiny, and the second is that the costs of defending an action are insane. It's one of those "even if you win, you lose" things, financially speaking. And under UK law, the burden of proof is on the defendant: it's not for the company to prove that it did nothing wrong; it's for the defendant to prove that it did.
We have a long and honourable tradition of firms using libel law to silence legitimate complaint, sadly.
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lefty
February 9th 2009
3. Oh, lest anyone forget, the truth is "an absolute defense" against charges of defamation...
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lefty
February 9th 2009
2. I think Mark's a horrible coward, and it's a shame that people's fears keep them from going after legitimate redress. Clearly, whether the company asked the manager to or not, he was "falsely representing [himself] as a consumer". Mark should have gone to court, and brought a countersuit (it's not difficult, plenty of books from Nolo Press can tell you exactly how), and reamed the health club in question.
Too bad he let himself be intimidated.
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moosetown
February 9th 2009
1. I disagree with the idea that justice is not being evenly protected here. The company in all likelihood didn't sanction the posting. Being a blogger does not absolve one of being careful to draw distinct lines in their rhetoric, particularly when writing about businesses. There's no proof the company had a hand in anything, and, frankly, common sense that they would ever bother with such a trivial complaint.
Okay, but let's say the company did know. In that case they aren't getting off Scott free here. Rather, they just armed some proof-bearing middle manager with enough blackmail power to bring the whole company down if he ever gets ********** enough.
Either way, it seems unlikely the company knew about any of this, or, if they did, that they've spared themselves future trouble handling it the way they are.
Bloggers: People are journalists. Be careful.
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