EU makes fake blogs and comments illegal: are all bloggers liable?

In what must be one of the weirdest laws to affect the blogosphere, Slashdot is reporting that the European Union is sponsoring a new “directive” (their fancy name for a law, as far as I can tell) that will make it illegal for companies to knowingly try to deceive customers about the origin of a weblog or other advertisement.
The original article is from the UK-based Times Online and it reports:
“Hotels, restaurants and online shops that post glowing reviews about themselves under false identities could face criminal prosecution under new rules that come into force next year. Businesses which write fake blog entries or create whole wesbites purporting to be from customers will fall foul of a European directive banning them from ‘falsely representing oneself as a consumer’.”
It’s not the first time I have come to recognize that the EU is more forward-thinking in terms of protecting consumers than we are here in the United States, but I have to ask, is this law really necessary? What are the implications for bloggers who allow comments to be added to their blogs too?

Here’s a scenario I can imagine playing out…
I write about a product that I like on my weblog, perhaps the new Seagate (NYSE: STX) Mirra that I’ve been testing. My review is favorable, but there are a couple of specifics that I dislike. A few days later, I get a comment from “Mike Smith” who contests the point I make about the Mirra being, say, noisy, and explains that all external backup drives are inherently noisy and that, in fact, the Mirra is quieter than the competition.
But Mike doesn’t bother to disclose that he’s a Seagate employee. (note: this is just a fictional example, I don’t mean to impinge Seagate’s track record of being very blog friendly, including its long-term sponsorship of my friend Robert Scoble‘s PodTech show)
Now, under the new EU directive, would I be liable as the blog hosting that false comment?
I sure hope not, because if so, then we’re all going to have to jump headlong into user identity verification and that’s going to create an extraordinary dampening factor on the interaction we already have in the blogosphere, the free-wheeling discussion that ranges across tens, dozens, and sometimes hundreds of different blogs.
Want to comment on this piece? Sure, can you show me your National Identity Card first and verify your place of employment, please?
Worse, we get into further wrinkles with this, because now you come to my site and want to add a comment, but you forget to disclose that your Dad is Dave Wickersham, who just happens to be president and CEO of Seagate. Is that something where you should have, by EU law, disclosed in your comment related to Seagate? What if we’re talking about Western Digital (NYSE: WDC), though, a competitor of Seagate? And what if you’re actually Wickersham’s daughter-in-law? Or great-niece? Or housecleaner’s son’s best friend?
This is the same issue I have with the big blogosphere buzzword of disclosure. It sounds really good until you start to think about the nuances of the situation. At what level does disclosure become a violation of privacy? At what point does disclosure or transparency become overbearing and impossible?
Oh, and in that spirit, would I, as an independent blogger, need to also disclose – by European Union Directive – that Seagate gave me the Mirra as a review unit and don’t expect me to send it back when I’m done with the review? Ethically, yeah, that’s something I should mention in a review, but by law?
Smartmobs has a quick take on this topic too, in which they state: “Sock puppets and sybils beware, using a new EU consumer protection law fake bloggers soon to be ‘named and shamed’.” Yes, fake blogs are duplicitous and ultimately aren’t very good marketing, at least not yet, but I have to ask again, do we really need a law?
And, more importantly, what are the implications for bloggers anyway?

17 comments on “EU makes fake blogs and comments illegal: are all bloggers liable?

  1. Sleazy business practices are under attack here, like when a company representative pretends to be a typical customer, or a company-sponsored site is disguised as customer-generated.
    I hope this law also concerns situations where a company compensates “buzz agents” or PayPerPosters to rave about them, while pretending to be genuine satisfied users.
    Online identity is so difficult to verify.
    This law may prevent one form of online deception, so I applaud it.
    These EU laws will likely be imported over here, to the USA.
    I wouldn’t worry about the random comment poster or annoying boilerplate spammers who “defend” a company because of ties with the company or incentives.
    As long as you are prudent and use due diligence to prevent that from happening, as best you can. But if your site is set up as a conduit for such deceptive comment posting, you may be in trouble.

  2. Dave — just a couple of points of clarification:
    In the Times article you cited, this appears to be a UK-only law, not an EU law. Although “The change is part of a Europe-wide overhaul of the consumer protection laws.” And it seems to be aimed at the people who post blogs or comments under false identities — not necessarily (as far as I can tell) sites, forums, or blogs where 3rd party comments happen to appear.
    According to that article, this law is aimed at people who misrepresent their identity online in order to promote or trash products or services. It requires honesty, but not full disclosure. So, in the “Mike Smith” example you gave, that comment would not be a problem as long as Mike Smith is indeed Mike Smith.
    Again, that’s just based on a quick reading. I’ll look into this further. Thanks for raising this issue, it’s interesting.
    Personally, I think this law is posturing since it would be damn well impossible to enforce.
    – Amy Gahran

  3. That’s exactly my point, Amy, but justice is littered with well-intended laws that have terrible unintended consequences. Is it a worthy goal to avoid misrepresentation and outright cons such as what Wal*Mart, Sony and Panasonic have unveiled in the last 12 months? You bet. Might the cure be worse than the illness? Quite possibly…
    Also, Rachel, thanks for the link. I’d forgotten that the US Federal Trade Commission is also wrestling with this online disclosure issue, but the same issues, unintended consequences and, yes, potential liabilities for bloggers exist with both, don’t you think?

  4. Hi Dave,
    I never cease to marvel at the directives and laws that our statute makers think up.
    Fake blogs are already exposed pretty quickly. You may as well make fake direct mail illegal – oh it is?
    I really think this law is completely unenforceable. Certainly at the moment. And hopefully forever.

  5. In the US anyway there is some protection
    I can’t find an equivalent summary for EU at the moment. Most of the case law at the moment is concerned with libel.
    I think there could be risks, but until the case law is established not sure which way it will go, ie whether it will follow what appears to be happening with libel where the blogger is not responsible for comments.

  6. The UK laws may be different, but when and if applied here, everyone is liable for fraud, misrepresentation, liable, and a host of other laws. It seems to me that holding a Company/individual responsible for same is in line with consumer/company protection regardless of the published venue. Blogging is the “new” venue, but as to breaking the law, I don’t see the difference between blogging and the published, written or spoken word–it just happens faster and has a quicker impact–so maybe the damage is greater.

  7. Amy, it’s not a UK-only law, though that’s what the UK paper is reporting. Key sentence: “The change is part of a Europe-wide overhaul of the consumer protection laws.”

  8. “The change is part of a Europe-wide overhaul of the consumer protection laws.”
    And how many committee hours and dead trees will this little caper consume in Brussels? How many civil servants will be appointed to refine the legislation and then police it? The mind boggles. Surely every European government should now be looking at creating a Ministry for Blog Control?

  9. This will be very, very difficult to enforce. Perhaps more importantly, how many individuals/companies are engaging in such activity? If 99% of the population is behaving well, do we need to legislate the activity by a few bad apples?
    When it comes to reviews, I would say that it would balance out somewhat if there were enough to wash away the planted reviews. The volume of reviews about a product should be solid evidence as to whether it is trustworthy or not (and most sites do monitor for multiple registrations from the same ip addresses & take action on accounts deemed suspicious).

  10. “I yam what I yam, that’s all what I yam.”
    – Popeye
    There will never be an end to shill posts, no matter what laws might be passed. It’s the role of the community, not the pols, to whack the moles.

  11. Hi Dave, you could check out Wikipedia’s entry on “European Union Directive” and find that there is a difference between ordinary legislation and directives. The EU is not a federal government like the US. There is a very real difference between EU “directives” and regulations in the manner they have to be absorbed by member nations.

  12. As a British subject I can happily confirm that most EU directives simply stay as “directives” with some members of the EU adopting some of them or rather bits of them as fits their needs.
    This directive is sabre rattling and is simply an easy way for the EU commission which “proposes” directives to show it’s really net-savvy and is on the side of “the little man”.
    As long as the EU manages to loose the alarmingly repetetive sum of 5 Billion pounds from it’s budget every single year without any form of punishment you can rest assured things will not change!

  13. Dave:
    I realize that I am a little out of the conversation loop (by seven months) but I wanted to weigh in on this topic: Jurisdiction of any EU or UK directive, legislation, or treaty and the possible exposure of a blogger to a criminal or civil law for deceptive comments.
    My conclusion is that only EU or UK bloggers should have any minimal concern. To obtain legal authority over a deceptive blog post it must “occur” in that jurisdiction for their civil and (especially criminal) laws to apply. An EU or UK blogger, with content directed to the EU or UK, would be more likely to face scrutiny than a US blogger. For example, EU privacy regulations have not yet developed as an obstacle to US corporations while EU entities have to at least pay lip service to those regulations.
    Regardless, it is very unlikely that a blogger would face criminal prosecution for the simple reason that criminal laws generally require that there be a criminal intent (loosely defined as “knowledge” in many countries). So, for example, if the blogger was unaware that the commenter was engaged in some deception the blogger would not be charged with a crime anywhere.
    A more realistic concern would be the possibility that a blogger would be caught up in the cross-fire between the deceptive commenter and a US (state or federal) investigative agency. The blogger might be expected to turn over electronically stored information. The blogger might be expected to testify or provide affidavits related to the posting. The blogger likely would be requested to identify the blogger’s ISP or bloghost.

  14. Hi, Dave.I am a reader from Asia.
    I am quite interested in this directive.
    I’ve read the whole text through internet. But I failed to catch the articles on prohibition of fake blog or comments. Could you please point it out for me ?
    Thanks a lot.

  15. I think that this EU new law is BS. It will be impossible to force it. There are tons of content, blogs, comments on the web, how will anyone be able to investigate if one has a any relations with the companies they are reviewing or commenting about? it’s just impossible…

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