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Astroturf Wars

Have you ever read an online user review and wondered if it was genuine? Welcome to the undercover world of Astroturfing!

Astroturfing is where someone on behalf of a business pretends to be an ordinary consumer and writes positive reviews about the business’ own product and/or negative reviews about a competitor’s.

January 2011

Although it is unethical and probably illegal, the real penalty is the PR own-goal which is scored if the Astroturfer is caught.

The word was reportedly first used in this context in 1985 by a former US senator about lobbying letters which he received and believed were “generated mail” from the insurance industry. AstroTurf® itself is a brand of artificial grass. The adoption of the name by analogy comes from the fact that organisations and businesses seek grassroots support (i.e. from the general public). Hence, Astroturfed recommendations look like real grassroots recommendations but are not.

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Businesses are keen to “engage” with their customers. They do this though social media, such as Facebook, Twitter and YouTube. The idea is that consumers trust product-recommendations from their peers more than they trust corporate marketing (which is obviously biased). Therefore, businesses try to enter the social networking discussion, hoping that word-of-mouth recommendations amongst friends will increase sales. Add the fact that online users can be anonymous, and the temptation for a business or trader to pretend to be an ordinary consumer becomes apparent.

Under the Consumer Protection from Unfair Trading Regulations 2008, “falsely representing oneself as a consumer” (in the context of promoting a product to consumers) is deemed to be an unfair commercial practice. This amounts to a criminal offence, the maximum penalty of which is 2 years imprisonment and/or an unlimited fine. The Regulations are policed by the Office of Fair Trading and Trading Standards. Of course, in these cash-strapped times, it is unlikely that the UK enforcement authorities will want to devote public money to investigating, let alone prosecuting, a one-off product review by an unscrupulous business or a rogue employee. But Astroturfers falling within the Regulations would be unwise to take the risk.

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In practice, the authorities may direct the complainant to the Advertising Standards Authority (‘ASA’). After 1 March 2011, the ASA’s remit will be extended to include marketing communications on companies’ or traders’ own websites or in other non-paid-for space online under their control, that are directly connected with the supply of goods or services. If an organisation (perhaps via one of its employees) posts a positive promotional review about its products (pretending to be a consumer), it seems likely that this will amount to a marketing communication. The CAP Code regulates “testimonials” (of which a user review appears to be an example). Accordingly, “marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine.” So, made-up testimonials (and hence, it seems, user reviews) may be caught.

In contrast, a positive or negative review written by a family member or friend would be unlikely to be covered by the Regulations or the Code, unless the person was directed to write the review by the company or trader.

Can the victim of a bad review sue the Astroturfer for damages? A possible cause of action is malicious falsehood. To succeed, the claimant must prove not only that the statement was false and caused the claimant damage, but also that it was made maliciously. Malice includes knowledge of falsity or recklessness as to the truth, and is usually difficult to prove. Therefore, the victim would probably focus on the implicit (false) statement that the review was presented by an unbiased consumer.

Where the review is extremely critical or personal (damaging the claimant’s reputation, rather than merely criticising goods or services), the law of libel could be deployed. Then the legal argument may focus on whether the review fell within the defence of honest opinion, which is defeated if the victim claimant proves malice.

positive reviewsIf a business is (anonymously) only posting positive reviews about its own goods or services, there is no obvious civil remedy which a competitor could use. The 2008 Regulations, ASA and PR routes (if applicable) are probably the only options.

One PR strategy would be to reveal the identity of the reviewer and allege Astroturfing. However, accusing someone of Astroturfing is a dangerous game, unless you are sure of your ground (and preferably have evidence). In the Orlando Figes saga in April 2010 (where the Birkbeck historian finally admitted anonymously writing positive reviews on Amazon about his own books and negative reviews about those of fellow historians), the law of libel was deployed by several parties. Mr Figes originally threatened to sue for libel those who alleged he had been Astroturfing, and in response they threatened to sue him for saying that their accusations were spurious. Eventually the pressure-cooker boiled over and Figes confessed.

How do Astroturfers get caught? In the Figes example, an analysis of the relevant Amazon user names, profile and associated reviews gave some clues. Owners of review sites may have a record of the real identity (or at least an email and/or IP address) behind a reviewer’s username. If they refuse to disclose the identity, the court may order them to in certain circumstances. Even then, a sly Astroturfer may have covered his or her tracks.

Although most Astroturfers on the web probably won’t be outed, only naive people believe all user reviews are genuine. Most people trust their instincts on which reviews look real and they look for patterns, especially on sites where users can post a review without proof that the user has even e.g. gone on the holiday (e.g. Trip Advisor) or purchased the digital camera reviewed. In contrast, a site such as Eviivo’s hotel and B&B booking website (which we advised on) has a system where the reviewer must have stayed in the hotel in order to be able to submit a review. Such a system increases authenticity and makes Astroturfing less likely.

But the most persuasive force preventing people from Astroturfing is not that it is ethically or legally inadvisable, but that getting caught is highly likely to cause a PR disaster and much embarrassment for the company and individual involved.

If you have any questions on this article please contact us.

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Tim Pinto

Timothy Pinto


As brands increasingly use social media, more people will be caught Astrofurfing. We've only seen the tip of the iceberg.

"Can the victim of a bad review sue the Astroturfer for damages?"

 

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