Australia: Astroturfing, social media and the law

Swaab Connect – July Edition

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 our specialist IP team at Swaab: 

Matthew Hall, Partner
Phone: +61 2 9233 5544

Anna Yeo, Solicitor
Phone: + 61 2 9233 5544

Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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