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Can the practice of “Astroturfing” be prosecuted under the UTPCPL?

Posted By Cliff Tuttle | June 14, 2015

No. 1,173

Sharyl Attkisson The Anti-astroturfer Image: the blaze.com

Sharyl Attkisson
The Anti-astroturfer
Image: the blaze.com

 

 

 

 

 

 

 

 

 

According to Dictionary.com:

“Astroturfing is the deceptive tactic of simulating grassroots support for a product, cause, etc., undertaken by people or organizations with an interest in shaping public opinion.” When artificial grass came on the scene, it was used in the enclosed Astrodome.  Hence the name.

Astroturfing can include paying people to write favorable on-line reviews in websites where customers report on products and services for the benefit of potential future customers. It can also involve actors posing as real consumers in advertising, delivering fake testimonials. Television commercials involving celebrity look-alikes, without a proper disclaimer, might also qualify.

While astroturfing is not limited to the internet, it thrives there.  Microsoft was apparently behind an astroturfing program last year to promote a new version of its now-defunct Internet Explorer.  PC World.com reported that this was not first or even the second such campaign. Among them, Microsoft, together with Google and Yahoo, recently admitted they were the secret backers of the European Privacy Association, which was formed to influence the debate on privacy issues in the EU through blog posts, comments to blog posts and advertising which was not attributed to the real source.

It has also been extensively used by drug manufacturers in campaigns to promote new prescription drugs.  In this TED presentation, investigative journalist Sharyl Attkisson explains how a well-constructed campaign can weave a fabric of information, such as studies and endorsements, so tightly that it completely eclipses a contrary points of view.

Always unethical, individual instances of astroturfing may violate federal and state unfair competition and consumer protection laws. The FTC has been active in prosecuting violators of  its “Guides Concerning the Use of Endorsements and Testimonials in Advertising.” The Attorney General of New York has aggressively pursued companies that utilized fake online reviews.  In September 2013, it announced agreement with 19 companies to cease the practice and pay a total of $350,000.00 in fines.

The Attorney General of Florida has also been active in this field. It reached an agreement with Lifestyle Lift, a promoter of a mini-facelift procedure in 2013. The company agreed to disclose whether the models in their commercials had actually had the procedure and whether they had been paid for their endorsement.

Yelp, Inc., an online publication which publishes consumer endorsements, has adopted screening software to detect fakery.  It cooperated with the New York Attorney Generals’s investigations and recently sued several people who have attempted to foil Yelp’s security measures.  In its suit, Yelp has plead causes of action under, inter alia, California’s Unfair Competition and False Advertising statutes.

The specter of astroturfing has even surfaced in the 2016 Presidential Campaign. An article in the Washington Times dated April 19, 2015, alleges that a campaign video that purports to capture candid interviews with voters was instead orchestrated with volunteers and donors from the last campaign, complete with scripts. In addition, astroturfing has been employed by both sides in the environmental arena, recruiting supporters for their position to appear at public hearings.

Although I am not aware of any cases in Pennsylvania involving astroturfing, either brought by the Attorney General or by private litigants, it appears that such litigation could be brought, either by the AG or an individual, under the Unfair Trade Practices Consumer Protection Law. (UTPCPL)

A number of sections from Section 4 of the UTPCPL seem to fit, including:

“(ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;

(iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by another;

(viii) Disparaging the goods, services or business of another by false or misleading representation of facts;”

And of course, the reliable catch-all:

“(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”

While it is easy to imagine the Attorney General bringing such a claim, a private litigant may wish to file a class action suit, since the harm to any single consumer would usually be minimal.

Unfortunately, in the case of Kern et al.  v Lehigh Valley Hospital, 2015 Pa. Super 19 (2015), the Superior Court held that UTPCPL required proof of reliance for each claim, making it virtually impossible to fulfill the requirement of commonality to obtain a class action determination.

Thus, private UTPCPL cases will be limited to those cases where the Plaintiff has significant damages or desires to make law, despite the cost.  This does happen.  In Calvalli v. Pet City, the Plaintiff brought a claim involving a single violation of the section regarding the duty of the seller of a pedigreed dog to provide proper documentation.  The case started at the Magisterial District Court, but was appealed by the defendant to arbitration, a judge and finally to Superior Court.  Each time the defendant raise the bet by appealing, the plaintiff  stayed in the game.  The statutory damages were minimal, but the case was important enough to both parties that they paid significantly more than the settlement value of the case in attorneys fees.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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