Monday, August 24, 2015

Ashley Madison and false advertising

I’m sure there’s a dirty joke in here somewhere: the Ashley Madison hack apparently exposed the site’s promise of equal numbers of men and women seeking opposite-sex affairs as untrue, with women running more at 15% of the site.  I don’t agree with this presentation of the issue:
[W]hatever the site’s claims, its apparent gender imbalances probably isn’t enough to call it a scam. “In the law, there’s this idea of puffery. Salespeople, and that’s what they are, are allowed to exaggerate,” says Hofstra University law professor Miriam Albert.
“A saleslady at Lord and Taylor says, ‘That dress looks awesome on you,’ when in reality, you’re packed like a 10-pound sausage into a 5-pound casing. She’s allowed to say that and you can’t sue her for it because you’re not relying on her to make the purchase.”
Similarly, there were some women on the site, so even if there weren’t as many as Biderman publicly claimed, the difference may not be enough to deem it fraud. “If what they’re really saying is ‘It’s evenly split,’ and someone went into it with that basis, I bet you could get your money back,” Albert says. “I’m just not sure it rises to the level of actionable fraud. It’s the cusp between puffery and fraud. It’s a slippery slope.”
Puffery of the “you look great in that” type is opinion; “this site has half women and half men” is not opinion. Exaggerating numbers is a classic example of a misrepresentation that can be sufficient to constitute false advertising.  I’m not sure what’s slippery about the slope here—other than the aforesaid dirty joke.

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