Astro­turf­ing, social media and the law

In brief — If astro­turf­ing mis­leads con­sumers, it breach­es Aus­tralian Con­sumer Law

“Astro­turf­ing” refers to an orches­trat­ed expres­sion of sup­port for a cause, whether a prod­uct, ser­vice or pol­i­cy, designed to give the impres­sion of a ​“grass­roots” move­ment. If this prac­tice mis­leads con­sumers, it breach­es both the Aus­tralian Con­sumer Law and the Code of Ethics of the Aus­tralian Asso­ci­a­tion of Nation­al Adver­tis­ers (AANA).

Astro­turf­ing as a new form of PR campaign

The rapid rise in the use of a vari­ety of social media plat­forms by busi­ness­es to pro­mote their brands and prod­ucts online has cre­at­ed an envi­ron­ment ripe for the new phe­nom­e­non of astroturfing. 

What is designed to appear to be a gen­uine grass­roots move­ment or groundswell of sup­port is in fact a sophis­ti­cat­ed and care­ful­ly tar­get­ed PR cam­paign. The term is derived from the brand of syn­thet­ic car­pet­ing designed to look like real grass: AstroTurf.

Astro­turf­ing in the UK revealed by The Times

A recent inves­ti­ga­tion by The Times news­pa­per in the Unit­ed King­dom revealed that hote­liers were pre­pared to invest sig­nif­i­cant cap­i­tal with an agency which was giv­en the task of improv­ing trav­el review rank­ings and dis­cred­it­ing com­pet­ing busi­ness­es on trav­el relat­ed web­sites. The Times found that the hotel own­ers were will­ing to pay up to £10,000 (A$15,000) for these services.

The strat­e­gy used by the agency was to cre­ate and use mul­ti­ple email accounts and to hire writ­ers to adopt var­i­ous writ­ing styles to fab­ri­cate a groundswell of sup­port for the com­pa­ny’s ser­vices. For many large cor­po­ra­tions with size­able mar­ket­ing bud­gets, the cost of such a strat­e­gy would prob­a­bly rep­re­sent mere­ly a mod­est disbursement.

The inves­ti­ga­tion revealed that with only a super­fi­cial under­stand­ing of dif­fer­ent social media plat­forms and the inter­net, astro­turfers can manip­u­late the social media land­scape to cre­ate mul­ti­ple fic­ti­tious online iden­ti­ties to cre­ate the impres­sion that sup­port for a par­tic­u­lar cause comes from a cus­tomer, com­men­ta­tor or blog­ger who is a real person.

Astro­turf­ing cam­paigns becom­ing increas­ing­ly sophisticated

So, how do you know if social media com­men­tary has been hijacked by peo­ple who are not who they seem to be? It is prob­a­bly impos­si­ble, par­tic­u­lar­ly giv­en that it appears from the rev­e­la­tions of the inves­ti­ga­tion by The Times that cam­paigns are becom­ing increas­ing­ly sophis­ti­cat­ed and well funded.

This activ­i­ty is far removed from a restau­ra­teur using a food­ies’ web­site to post a rave review about his or her own restau­rant or a damn­ing one about the com­peti­tor down the street. Most peo­ple have learnt to read such reviews with a healthy degree of scep­ti­cism. Com­mer­cial astro­turf­ing is much hard­er to detect and sophis­ti­cat­ed tech­nol­o­gy is being employed to reduce the effec­tive­ness of detec­tion measures.

On a prac­ti­cal lev­el, the tech­niques and scale of an elab­o­rate astro­turf­ing cam­paign can prob­a­bly only be revealed with the help of an insid­er who decides to turn whistle­blow­er. With social net­work­ing sites like Face­book and email host­ing ser­vices like hot­mail and gmail cre­at­ing infi­nite pos­si­bil­i­ties for the cre­ation of fic­ti­tious iden­ti­ties online, the evi­dence trail is becom­ing ever hard­er to detect.

Legal impli­ca­tions of astroturfing

Busi­ness­es con­sid­er­ing engag­ing in astro­turf­ing or com­mis­sion­ing oth­ers to do so must keep in mind the risks posed by con­duct that mis­leads or is like­ly to mis­lead con­sumers. Astro­turf­ing in this con­text is unlaw­ful. It breach­es both the Aus­tralian Con­sumer Law and the AANA Code of Ethics for advertising.

To date there have been no legal actions relat­ed to astro­turf­ing in this coun­try, but it is prob­a­bly only a mat­ter of time before we see such actions being launched. The big chal­lenge in such cas­es will be to prove the deception.

As dis­cussed in our ear­li­er arti­cle, When are you liable for third par­ty post­ings about your busi­ness on a social net­work­ing site? the Aus­tralian Com­pe­ti­tion and Con­sumer Com­mis­sion (ACCC) has already demon­strat­ed that it does not exclude rep­re­sen­ta­tions made via social media from its def­i­n­i­tion of con­duct that could mis­lead con­sumers. In this case, the ACCC took action against Aller­gy Path­way Pty Ltd for mis­lead­ing and decep­tive con­duct on the basis of post­ings on the com­pa­ny’s Face­book wall.

When con­tact­ed by Swaab Attor­neys, the ACCC stat­ed that at present it does not have a spe­cif­ic pol­i­cy relat­ing to the pre­ven­tion, man­age­ment or penal­i­sa­tion of astro­turf­ing. The reg­u­la­tor added:

“How­ev­er, it is pos­si­ble that such prac­tices may in spe­cif­ic cir­cum­stances risk breach­ing … the Aus­tralian Con­sumer Law. The issue of whether (the ACL pro­hibits) ​‘astro­turf­ing’ is like­ly to rest upon the cir­cum­stances, con­text and rep­re­sen­ta­tions made in each spe­cif­ic instance of such a phenomenon.”

Busi­ness­es urged to resist the temp­ta­tion to mis­lead consumers

While it is under­stand­able that a busi­ness may be tempt­ed to engage in astro­turf­ing to fash­ion a groundswell of sup­port for its prod­ucts or ser­vices, it is worth remem­ber­ing that such activ­i­ty car­ries a dou­ble risk. Not only could it expose the com­pa­ny to legal action for mis­lead­ing con­sumers — the oth­er gam­ble is that once the arti­fi­cial nature of the sup­port move­ment has been revealed, the ruse will com­plete­ly back­fire and destroy any good­will which has been created.

For more infor­ma­tion or sup­port with ensur­ing that your online mar­ket­ing cam­paigns do not fall foul of the law by cre­at­ing a mis­lead­ing impres­sion, con­tact Swaab Attorneys.

Co-authored by M Hall.