To many sports fans, Astroturfing means laying down plastic grass especially for use in the multi-purpose stadiums so popular in the 1960s and 70s. As a playing surface, AstroTurf was known to be hazardous to the bones and joints of those who played on it. Today, however, the term Astroturfing has taken on a new life in the advertising world. A recent series of enforcement actions by the New York Attorney General (“NY AG”) demonstrates that Astroturfing in advertising can be as hazardous to those involved as the playing surface was at Veteran’s Stadium.
In the ad world, Astroturfing refers to efforts to improve a marketer’s online reputation by paying people to post favorable reviews of your product or service on social media. On September 23, 2013, the NY AG announced agreements with 19 companies imposing more than $350,000 in fines for engaging in Astroturfing. The companies named include both merchants and search engine optimization companies that provided Astroturfing as part of their services for merchants. Some of the companies in the crackdown used their own employees, while others hired contractors who tried (apparently unsuccessfully) to mask their identities. Among the companies named was a licensee of a Scores gentleman’s club franchise, which orchestrated over 175 reviews that were as fake as some of the “attributes” of the entertainers at that establishment.
In announcing the crackdown, the NY AG pointed to research indicating that 90% of consumers say that online reviews influence their purchasing decisions and that increases in ratings on Yelp or similar cites translates directly into increased revenue. Some predict that by 2014 between 10 and 15% of social media reviews will be fake.
The NY AG maintained that preparing or disseminating false reviews that a reasonable consumer would take to be a neutral third-party review constituted false advertising under NY law. This approach is similar to that taken by the FTC in its Endorsement and Testimonial Guides and in enforcement actions against Legacy Learning Systems, and Reverb Communications.
Readers of this blog already know that paying people to write phony positive reviews about your product or service is a bad idea. In case there was any doubt, these enforcement actions should remove it. The harder question faced by marketers is how to disclose more subtle material connections between reviewers or bloggers and marketers such as free samples. For the answer to that question, we suggest you follow the advice of one on-line reviewer: “If you have questions regarding advertising law, the lawyers in Venable’s Advertising Group are the best; they are smart, funny, good looking, great at parties, and provide practical advice that marketers can use.”