On July 14, 2009, Andrew Cuomo, the attorney general of New York, settled with Lifestyle Lift, a plastic surgery franchise, for false and deceptive trade practices. The case concerned the growing practice of “astroturfing,” which refers to flooding the Internet with false positive reviews about one’s goods or services. The case is believed to be the first in the nation, and will cost Lifestyle Lift $300,000 in penalties and costs.
According to the New York attorney general’s complaint, Lifestyle Lift asked its employees to create accounts with various Internet message boards and pose as satisfied customers of Lifestyle Lift. In addition, employees were asked to attack legitimate message board posters who criticized Lifestyle Lift, and tried to get those posts removed from message boards. The act of having employees pose as independent consumers, according to the New York attorney general, was fraudulent and deceptive conduct because it could mislead consumers about the product’s effectiveness.
In addition to posting on various Internet message board services, Lifestyle Lift registered and created stand-alone websites, such as MyFaceliftStory.com, which appeared as if they were created by independent and satisfied customers. The sites offered positive narratives about the Lifestyle Lift experience, as well as comments from what appeared to be other consumers about their experiences with Lifestyle Lift. However, these sites were directly controlled by Lifestyle Lift, which either provided all the “user comments” themselves, or closely monitored and edited third-party comments to skew the discussion in favor of Lifestyle Lift. The New York attorney general’s office has provided examples of these narratives.
Under the settlement, Lifestyle Lift will stop publishing anonymous positive reviews about the company to Internet message boards and other websites, and will pay $300,000 in penalties and costs to the State of New York.
Why This Matters: This case is notable not because of Lifestyle Lift’s messaging about its own products. Clearly the creation of fake “user” experiences can lead to a claim of unfair or deceptive trade practices. Rather, this case matters because of its treatment of Lifestyle Lift’s removal of bad reviews from its own site. Making a company civilly liable for removing third-party content from its website may appear to conflict with the Communications Decency Act of 1996, which shields interactive computer-services providers from liability for removing content from its websites. But in this case, Lifestyle Lift’s conduct makes clear that the “good faith” requirement of the Act could not be met. Going forward, companies that advertise online must watch not only the statements they are making about their product, but also their efforts to control what is said on their websites by third parties, to ensure that any removal does not cross the line between immunized activity and liability.