Viral False Advertising

Truth or Illusion: What’s Real on YouTube?: This article about undisclosed advertising on YouTube raises several points of interest to me.

First, on Lonelygirl15, “soon viewers became suspicious. The high quality of video lighting, slick editing and lack of copyrighted music led to accusations that Lonelygirl15 was a hoaxer” (emphasis added). Keeping it real apparently now includes keeping it with a popular soundtrack, which itself is understood to be unlicensed. Will we now see licensed but low-production-value attempts to appear viral on the part of Lonelygirl15’s successors?

The article takes the position that Lonelygirl15’s creators aren’t making art, as they allege, but deceiving others for profit. “Misrepresenting commercials as independent user-generated content, actors as members of the public, and fiction as fact is not art, it's advertising. The Lonelygirl15 videos were created for the explicit purpose of promoting a product, in this case the actress Jessica Rose.”

When Marty Schwimmer pointed me at this brouhaha, my reaction was that it may well have been falsity, but consumer protection law hasn’t generally applied to pure entertainment. Since “supposedly fact, actually fiction” is a standard description of any false advertising claim, though, one can call this false advertising without too much work – though First Amendment considerations come into play. The closest thing I can think of is two lawsuits against the exaggerated claims made by the Beardstown Ladies investment advice book, which produced split results – one allowing consumer fraud claims to proceed, one barring them on First Amendment grounds. The developments here also have an intriguing symmetry with the false advertising claims against the James Frey “memoir” that turned out to be highly fictionalized. Here, however, there are no refunds available.

Although the deception here doesn’t seem to have been all that significant, the article points out that it relied on a feature of “user-generated content” that can be used more ominously: Its apparently greater credibility, because it’s not coming from an advertiser with an incentive to distort, and it’s not assessed using our standard advertising filters.

The article also warns of a new format, the “smear-video” depicting a rival brand’s product performing badly. Since a disparaged competitor would have a much easier time of making out a false advertising case than a deceived viewer, “astroturf” smear videos seem incredibly risky, especially since anonymity in posting is rarely as strong as people think it is. I’m not sure how big a worry competitor-generated disparagement is, but user-generated disparagement is surely a branding concern.