As far as speaking your opinions on the web goes, might beats right every time

You may recall that last year year, astroturfing, sock puppetry and other forms of fake-blog bullshit were made illegal – at least, illegal if they're carried out by companies.

Section 22 of the Unfair Commercial Practices Directive is absolutely clear, making it illegal to go around "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".

Has it made a difference? Nope. Just ask Mark.

Mark is a blogger, and a few weeks back he did a typical blogger thing. He'd been mucked about by a health club, which messed up his cancellation and continued to charge him, so he vented his frustration on his blog.

Time passed, and then a new poster turned up, disagreeing strongly with what he'd written in a number of messages. You're talking out of your backside, the commenter told him. I've been dealing with that firm for a million years, and they're bloody great, he said. They're the nicest, smartest, funkiest, sexiest company on the face of the Earth, and they're probably the best company in the universe, too. You're a big fat liar.

Mark idly Googled the commenter's name. Surprise! He's a middle manager in the very company Mike was blogging about. So Mark did another typical blogger thing. He blogged about that, too, outing the manager on his blog and accusing him of astroturfing. That's when the legal letters started.

You know the drill. You're defaming our client, the letters said. Take down the posts, or we'll sue you until you squeak.

The thing is, the lawyers didn't say that Mark was wrong. Quite the opposite. The poster was indeed a manager of the very health club Mark had blogged about. They didn't dispute that.

However, they said that the company hadn't asked the manager to post anything and certainly didn't approve of such behaviour. Because Mark had named the company, his posts about astroturfing were therefore defamatory.

Was Mark in the right? I think so, but that doesn't really matter. Mark wouldn't get legal aid to fight a defamation case, so if he went to court and lost, the costs would ruin him – and even if he won, the costs would still ruin him.

He could try to get the firm prosecuted for astroturfing, but all that stuff about £5K fines and two-year jail sentences is for the really bad guys. In a case like this, it'd be tough to persuade Trading Standards or the OFT to even investigate; if they did, the punishment wouldn't be anything more severe than a stern letter.

Faced with a battle he couldn't possibly win, Mark took the posts down. It doesn't matter that his posts were honest and accurate, or that the accusations he made were absolutely true. All a company needs to do when caught astroturfing is to say "we knew nothing about it" and send the lawyers in.

As ever, when it comes to companies behaving badly online, might beats right every time.

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First published in .net magazine, Issue 185

Now read Battlefields and bikes: blogging from the edge

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