Online Astroturfing and the European Union’s Unfair Commercial
Practices Directive
By Ronan Tigner (Master en droit de l’ULB, 2009-2010)
2
Introduction
In the first part of this study, I will start by briefly explaining the etymology of the
concept of astroturfing and its current signification (I).
In the second part, I shall comment on the aim, the scope and the content of the
European Union’s Unfair Commercial Practices Directive1.
I shall then analyse if and how astroturfing towards consumers is dealt with by the
UCPD and what difficulties one may encounter in trying to effectively detect and deter
such a practice (II).
In the third part, I offer a conclusion (III).
I. Astroturfing – Etymology and current signification
To grasp the meaning of astroturfing, one must understand what a grassroots movement
is. A grassroots movement is one that is triggered and driven by a spontaneous
upwelling of public opinion2.
In the literal sense, astroturfing refers to the practice of laying down Astroturf, a form
of artificial plastic grass that was installed in 1966 in the world’s first domed sports
stadium in Houston, Texas known as the Astrodome, where real grass could not survive
for lack of natural light.
In the figurative sense, astroturfing refers to the practice of disguising an orchestrated
campaign as a grassroots movement3.
Astroturfing, in this second acceptation, occurs in multiple areas of society.
For example, in the political sphere, there have been many cases of politicians feigning
spontaneous support from their would-be electorate or spreading falsely citizen-based
criticism damaging towards their political opponents’ reputation4. Astroturfing
1
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer
commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and
2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of
the Council.
Hereafter, the UCPD.
2
“Astroturfing”. 193 2590, New Scientist, 02624079, 10 February 2007; C. Holahan, “Keeping Up With the Web's New Lingo”,
BusinessWeek Online (12 April 2007) 4; R. Goldsborough, “Readers Can Be Part of Solution in Making User Reviews Useful.”, 22
5 Community College Week (19 October 2009) 13
3
“Astroturfing”. New Scientist, ibid.
4
A. Dworkowitz, Letters to the editor, “Too many copycats?”, 97 176 Christian Science Monitor, 08827729, (4 August 2005).
A. Regalado and D. Searcey, “Where did that video spoofing Gore's film come from?”, The Wall Street Journal (03 August 2006).
3
techniques are likewise often used for lobbying purposes whereby companies – or their
public relations intermediaries – conveniently identify demands or complaints from
concerned members of a community who support/oppose a practice that the company
happens to be lobbying for/against5.
Astroturfing is also found in the area of consumer sales, with sellers passing themselves
off as consumers in order to make laudatory comments about their own product or
service.
The list goes on, though it is essentially about astroturfing towards consumers that this
paper shall focus on.
With the arrival of the Internet, and especially the second generation Internet 2.0 which
enables users to actively contribute to enhancing online content by posting their own
comments, videos or other materials on websites, astroturfing has reached a new
threshold.
False consumer reviews can be posted on the Web rapidly, cheaply and on a massive
scale.
Given that cynics and astroturfing advocates will argue that advertising is all about
make-believe and bending reality anyway, one could be forgiven for wondering if
astroturfing is condemnable. Yet I contend it is.
There is a line between bluster and self-boosterism on one side and outright fraud on
the other. However thin the line – and sometimes it becomes very thin indeed – it
should not be crossed.
For example, an individual usually tends to play up his qualities while downplaying his
faults. That in itself is not reproachable because it is expected and falls within the
reasonable ethos of marketing (and human nature). However, if a
producer/distributor/seller surreptitiously reviews his own product without revealing his
quality or while implying or explicitly stating he is acting as a (disinterested) consumer,
his review will most certainly be biased and duplicitous vis-à-vis the consumer.
Several major companies, such as Microsoft6, Wall-Mart7, Sony8, Belkin9, etc. have
been caught practicing astroturfing towards consumers on- and/or off-line.
“Argent
virtuel,
lobbying
bien
réel”,
Lemonde.fr
(11
December
2009),
available
at
http://www.lemonde.fr/technologies/article/2009/12/11/argent-virtuel-lobbying-bien-reel_1279142_651865.html
(last
visited
January 15, 2010); S. Strom, “Firm Wants U.S. Inquiry in Lobby Case”, The New York Times (28 August 2009).
6
G. Goodale and A. Tully, “Who's that selling at your (online) door?”, 100 77 Christian Science Monitor, 08827729, (17 March
2008).
5
4
It must be noted that very few cases of astroturfing have led to actual lawsuits and
condemnations at this time, despite the important media coverage some of them have
received10.
In America, the so-called Lifestyle Lift case11 may set an important precedent for future
cases of astroturfing.
In Europe, there has not yet been to my knowledge any significant court decision on
astroturfing, though the matter is clearly dealt with under the Unfair Commercial
Practices Directive, on which I shall now comment.
II. The Unfair Commercial Practices Directive and Online Astroturfing
The purpose of the European Union’s directive 2005/29 concerning unfair commercial
practices is, as stated in article 1 of the directive, to approximate the laws, regulations
and administrative provisions of the Member States on unfair commercial practices by
a trader harming consumers' economic interests. The directive only protects consumers’
(B2C12) economic interests (as opposed to moral interests for example) and does not
concern unfair commercial practices which may damage business’ economic interests
(B2B13), for there is at this time no clear consensus14 in Europe on the harmonisation
of unfair competition rules.
Article 2 of the directive provides an extensive list of definitions of the key concepts
employed for the purposes of the directive. Among other notions, the consumer is
defined as “any natural person who, in commercial practices covered by this directive,
is acting for purposes which are outside his trade, business, craft or profession”15, while
F. Hayes, “Laughing Matters”, 41 8 Computerworld, AN 24126161 (19 February 2007) 38.
F. Ahrens “Crackdown on Fake Blogs, Astroturf”, Washington post (12 February 2007)
Available at http://voices.washingtonpost.com/posttech/2007/02/crackdown_on_fake_blogs.html (last visited January 15, 2010).
7
J. Goldberg,, “Selling Wal-Mart”, 83 6 New Yorker, 0028792X (2 April 2007).
8
A. Krotoski, “New Sony viral marketing ploy angers consumers”, The Guardian (11 December 2006) guardian.co.uk
http://www.guardian.co.uk/technology/gamesblog/2006/dec/11/newsonyviral (last visited January 15, 2010).
9
See letter of apology by the President of Belkin on the company’s website, available at
http://www.belkin.com/pressroom/letter.html (last visited January 15, 2010).
10
Though from a purely marketing point of view, the mere fact of revealing that a company practices astroturfing will affect the
company’s name and image, which does constitutes somewhat of a sanction.
11
See Lifestyle Lift available at http://www.ag.ny.gov/media_center/2009/july/july14b_09.html (last visited January 15, 2010) and
Cl. Cain Miller, “Company Settles Case of Reviews It Faked, “The New York Times (15 July 2009), available at
http://www.nytimes.com/2009/07/15/technology/internet/15lift.html?_r=1(last visited January 15, 2010).
12
Business-to-consumer. See also article 3 (1) of the directive.
13
Business-to-business.
14
In some cases, member states have decided to harmonise certain aspects of unfair competition, while in others, they have
discarded this possibility. Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning
misleading and comparative advertising for example applies to business-to-consumer but also business-to-business transactions.
Likewise, directive 2005/29/EC does not preclude Member States from extending its application also to businesses through national
law.
For a detailed discussion of this issue, see European Parliament - Committee on Petitions Report of 13 November 2008 on the
Misleading Directory Companies (Petitions 0045/2006, 1476/2006, 0079/2003, 0819/2003, 1010/2005, 0052/2007, 0306/2007,
0444/2007, 0562/2007 and others) (2008/2126(INI)).
15
Article 2 (a) of the directive.
5
the trader is defined as being “any natural or legal person who, in commercial practices
covered by this directive, is acting for purposes relating to his trade, business, craft or
profession and anyone acting in the name of or on behalf of a trader”16. A consumer is
thus only a natural person, while a trader can be either a natural or a legal person. The
term “product” is defined in a broad matter as “any goods or service including
immovable property, rights and obligations”17 18.
The directive was supposed to be transposed into national law by 12 June 200719.
However, many Members States were/are late in doing so20. Article 3 (5) of the
directive foresees that for a period of six years21 from 12 June 2007, Member States
shall be able to continue to apply national provisions within the field approximated by
this directive which are more restrictive or prescriptive than the directive and which
implement directives containing minimum harmonisation clauses, provided these
measures are essential to ensure that consumers are adequately protected against unfair
commercial practices and are proportionate to the attainment of this objective.
This provision seems to set a sort of transition regime of minimal harmonisation22, at
the end of which the directive shall become a directive of maximum harmonisation,
save in certain areas specified by the directive23. However the directive is to be
reviewed and, if necessary, revised in 2011 in such a way that the situation might differ
in the future24.
Chapter 2, article 5 of the directive contains a general ban on unfair commercial
practices while Chapter 2, section 1 (articles 6 to 9) distinguishes two types of unfair
commercial practices which the directive focuses on: misleading commercial practices
on the one hand (articles 6 and 7) and aggressive commercial practices on the other
hand (articles 8 and 9).
The directive also enumerates, in its Annex I, a Black List of practices which are in all
circumstances considered unfair. The Black List covers all media, including the
Internet25. This list is essential for the purpose of this paper because astroturfing is
16
Article 2 (b) of the directive.
Article 2 (c) of the directive.
18
For the other definitions, see article 2 of the directive, especially “business-to-consumer commercial practices”, “to materially
distort the economic behavior of consumers”, “professional diligence” and “transactional decision”.
19
Article 3 (5) of the directive.
20
See D.G. Health and Consumer Protection, “The Unfair Commercial Practices Directive”, available at
http://ec.europa.eu/consumers/rights/ (last visited January 15, 2010).
21
Prolongable if considered appropriate following article 18 of the Directive. See article 3 (5), in fine.
22
G. Howells, H-W. Micklitz and Th. Wilhelmsson, European Fair Trading Law: The Unfair Commercial Practices Directive
(2006) 36.
23
See esp. article 3 (9) and (10) of the directive.
24
See article 3 (5) in fine and article 18 of the directive.
25
“The unfair commercial practices directive. questions and answers”, MEMO/07/572 (Brussels, 12 December 2007) available at
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/572&format=HTML&aged=0&language=EN (last visited
January 15, 2010).
17
6
contained in this enumeration. Indeed, under point No. 22 of the said list, “falsely
claiming or creating the impression that the trader is not acting for purposes relating to
his trade, business, craft or profession, or falsely representing oneself as a consumer”
shall constitute a misleading practice26.
The directive thus explicitly condemns astroturfing towards a consumer. The same
single list applies in all Member States and may only be modified by revision of the
directive27. The advantage of a Black List is that it considerably lightens the weight of
the burden of proof for the consumer: a practice which figures on the list will be
considered unfair in all circumstances, i.e. without having to answer all the conditions
set forth in Chapter 2 of the directive28, provided, as noted supra, the said practice
concerns a” product”, is being performed by a “trader” and is harmful to “the economic
interests of a consumer”, in the sense of the directive. It must be recalled that legal
persons may not complain about astroturfing under the directive because they may not
qualify as consumers in the meaning of the directive, which considerably narrows the
protection offered by the instrument. Member States may however, for the time being,
extend29 the definition of the consumer to legal persons30.
The sanction of an unfair commercial practice is left to the Members States31, which
may consequently lead to asymmetry in consumer protection across the European
Union.
In sum, the legal framework in Europe for fighting astroturfing towards consumers has
been put into place. There remain however some major practical issues that may
considerably hinder the effectiveness of the directive, especially with regards to online
transactions.
Ultimately, astroturfing can be performed on the internet on a large scale and go
relatively unnoticed. Several solutions have been thought out in attempts to fight the
practice, though they remain relatively mild. IP32 mapping technology can be used to
trace the origin of online content for example. However, IP addresses, especially for
26
One could also, subsidiarily, mention practice No. 11 of the list as a form of astroturfing.
Article 5 (5) of the directive.
28
G. Howells, H-W. Micklitz and Th. Wilhelmsson, op. cit., 158.
29
See supra, article 3 (5) of the directive.
30
However, this raises the issue of determining when a legal person may be considered as acting for purposes which are outside his
trade, business, craft or profession, as required by the definition of article 2 (a), in fine. On this matter see M. Van Den Abbeele,
“Les contours de la notion de consommateur dans la loi sur les pratiques du commerce“ 77 Droit de la Consommation (2007) ; Ch.
Biquet-Mathieu, Les contrats du consommateur - Rapport de droit belge (2007) Association Henri Capitant Journées
,colombiennes Bogota – Carthagène 24 au 28 septembre 2007 ; J. Herre, E Hondius and G. Alpa, The notions of consumer and
professional and some Related questions, available at http://www.sgecc.net/media/downloads/consumers_and_professionals.pdf
(last visited January 15, 2010).
31
Article 13 of the directive.
See G. Howells, H-W. Micklitz and Th. Wilhelmsson, op. cit., 218 and 227-231.
32
Internet Protocole.
27
7
small and medium businesses, are more often dynamic than static (meaning that the
internet user is assigned a new IP address every time he reconnect to the internet 33) and
at any rate, aren’t sufficient to identify the person(s) posting the online content. The
cooperation of the Internet Service Provider is often required in this case to reveal the
needed information, which itself raises considerable privacy issues34.
Exhorting companies to adhere to codes of conduct and charts of good practices is
another solution, and is highly encouraged by the directive itself35.
Elsewhere, new computer programs can be developed to detect large scale astroturfing
(by counting the number of similar occurrences of a review of a product online, or
performing a temporal analysis of the frequency at which a review was made, etc).
Requiring identification for online message posting and using anti-bot technology may
also discourage astroturfing.
Consumer review websites are increasingly setting up internal complaints procedures as
well as “flag and tag” systems36, and other monitoring strategies, for suspicious
reviews.
At this time however, strengthening consumer vigilance via awareness-raising
campaigns may prove to be the best countermeasure against astroturfing37. As it was
eloquently put in Gloria Goodale’s article Who's that selling at your (online) door?,
“we all need to develop a healthy skepticism and the ability to question messages we
receive on the Internet”38.
III. Conclusion
There has been increased awareness within the EU of the existence of the practice of
astroturfing, especially online astroturfing, and of the damages it can cause to
consumers’ economic interests and to the market.
The European Union’s Unfair Commercial Practices Directives places astroturfing
towards consumers in its Black List of practices that are considered unfair in all
33
See http://searchwindevelopment.techtarget.com/sDefinition/0,,sid8_gci520967,00.html# (last visited January 15, 2010) and C.
Chassigneux, Vie privée et commerce électronique (2004) 29.
34
See K. J. Strandburg, D. Stan Raicu, Privacy and technologies of identity: a cross-disciplinary conversation (2006); P. Baudry,
Cl. Sorbets and A. Vitalis, La vie privée à l'heure des médias (2002) 76 et seq.
35
See Preamble (20) and Chapter 3 of the directive.
36
P. Bhatnagar, “Fake reviews on the Web...caveat emptor”, CNNMoney.com (10 May 2006), available at
http://money.cnn.com/2006/05/10/news/companies/bogus_reviews/ (last visited January 15, 2010).
37
See the explanatory brochure of the Unfair Commercial Practices Directive issued by the Directorate-General Health &
Consumer Protection , available at http://ec.europa.eu/consumers/cons_int/safe_shop/fair_bus_pract/ucp_en.pdf (last visited
January 15, 2010); A. P. Mintz, Web of deception: misinformation on the Internet (2002) 143.
38
G. Goodale and A. Tully, loc. cit.
8
circumstances. The list is identical in all member states but the sanction for astroturfing
varies from one member state to another. At a minimum, the legal framework is in
place to fight astroturfing.
However, this appears to be a paradigmatic instance where law in the books and
material reality collide. Though legally condemnable, astroturfing is very difficult to
deter, yet even to detect. Some solutions have been proposed to identify astroturfing,
but they remain quite mild. More stringent measures would mean more intrusion into
internet user’s activity and would raise considerable privacy issues.
Currently, the most efficient way to prevent and deter astroturfing is to raise consumer
awareness by ensuring that consumers understand that internet reviews are a very
relative and secondary source of information; that such reviews may be self-serving,
false and duplicitous; that “the Internet would be but an ordinary web, did it not count
its millions of spiders” -Maxime Allain39.
39
http://www.evene.fr/celebre/biographie/maxime-allain-5300.php?citations (last visited January 15, 2010).
9
Bibliography
Legislation
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market
and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and
2002/65/EC of the European Parliament and of the Council and Regulation (EC) No
2006/2004 of the European Parliament and of the Council.
Directive 2006/114/EC of the European Parliament and of the Council of 12 December
2006 concerning misleading and comparative advertising
Case law
Lifestyle
Lift
available
at
http://www.ag.ny.gov/media_center/2009/july/july14b_09.html (last visited
January 15, 2010).
Literature
Baudry, P., Sorbets, Cl. and Vitalis, A., La vie privée à l'heure des médias (2002).
Ch. Biquet-Mathieu, Les contrats du consommateur - Rapport de droit belge (2007)
Association Henri
Capitant Journées ,colombiennes Bogota – Carthagène 24 au 28 septembre 2007.
Chassigneux, C., Vie privée et commerce électronique (2004).
Herre, J., Hondius, E and Alpa, G., The notions of consumer and professional and some
Related questions,
available at http://www.sgecc.net/media/downloads/consumers_and_professionals.pdf
(last visited January 15, 2010).
Howells, G., Micklitz, H-W. and Wilhelmsson, Th., European Fair Trading Law: The
Unfair Commercial Practices Directive (2006).
Mintz, A. P., Web of deception: misinformation on the Internet (2002).
10
Strandburg, K. J., Stan Raicu, D., Privacy and technologies of identity: a crossdisciplinary conversation (2006).
Van Den Abbeele, M., “Les contours de la notion de consommateur dans la loi sur les
pratiques du commerce“ 77 Droit de la Consommation (2007).
11
Press articles
“Argent virtuel, lobbying bien réel”, Lemonde.fr (11 December 2009),
available at http://www.lemonde.fr/technologies/article/2009/12/11/argentvirtuel-lobbying-bien-reel_1279142_651865.html (last visited January 15,
2010)
“Astroturfing”. 193 2590; New Scientist, 02624079, 10 February 2007, C.
Holahan, “Keeping Up With the Web's New Lingo”, BusinessWeek Online
(12 April 2007).
Ahrens, F., “Crackdown on Fake Blogs, Astroturf”, Washington post (12 February
2007).
Bhatnagar, P., “Fake reviews on the Web...caveat emptor”, CNNMoney.com (10 May
2006), available at http://money.cnn.com/2006/05/10/news/companies/bogus_reviews/
(last visited January 15, 2010).
Cain Miller, Cl., “Company Settles Case of Reviews It Faked“, The New York Times
(15
July
2009),
available
at
http://www.nytimes.com/2009/07/15/technology/internet/15lift.html?_r=1(last visited
January 15, 2010).
Dworkowitz, A., Letters to the editor, “Too many copycats?”, 97 176 Christian Science
Monitor, 08827729, (4 August 2005).
Goldberg,, J., “Selling Wal-Mart”, 83 6 New Yorker, 0028792X (2 April 2007).
Goodale, G., and Tully, A., “Who's that selling at your (online) door?”, 100 77
Christian Science Monitor, 08827729, (17 March 2008).
Hayes, F., “Laughing Matters”, 41 8 Computerworld, AN 24126161 (19 February
2007).
Krotoski, A., “New Sony viral marketing ploy angers consumers”, The Guardian (11
December
2006)
guardian.co.uk
http://www.guardian.co.uk/technology/gamesblog/2006/dec/11/newsonyviral
(last
visited January 15, 2010).
12
Regalado, A. and Searcey, D. “Where did that video spoofing Gore's film come from?”,
The Wall Street Journal (03 August 2006).
Strom, S., “Firm Wants U.S. Inquiry in Lobby Case”, The New York Times (28 August
2009).
13
Reports
European Parliament - Committee on Petitions Report of 13 November 2008 on the
Misleading Directory Companies (Petitions 0045/2006, 1476/2006, 0079/2003,
0819/2003, 1010/2005, 0052/2007, 0306/2007, 0444/2007, 0562/2007 and others)
(2008/2126(INI)).
Other
“The unfair commercial practices Directive. questions and answers”, MEMO/07/572
(Brussels, 12 December 2007) available at
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/572&format=HT
ML&aged=0&language=EN (last visited January 15, 2010).
D.G. Health and Consumer Protection, “The Unfair Commercial Practices Directive”,
available at http://ec.europa.eu/consumers/rights/ (last visited January 15, 2010).
Explanatory brochure of the Unfair Commercial Practices Directive issued by the
Directorate-General Health & Consumer Protection , available at
http://ec.europa.eu/consumers/cons_int/safe_shop/fair_bus_pract/ucp_en.pdf (last
visited January 15, 2010).
http://searchwindevelopment.techtarget.com/sDefinition/0,,sid8_gci520967,00.html#
(last visited January 15, 2010)
http://www.evene.fr/celebre/biographie/maxime-allain-5300.php?citations (last visited
January 15, 2010).
Letter of apology by the President of Belkin on the company’s website, available at
http://www.belkin.com/pressroom/letter.html (last visited January 15, 2010).