Are Fake Reviews Illegal?
The FTC forbids “unfair and deceptive marketing,” which includes fake reviews. BUT! The issue isn’t black and white. Proper disclosures and a trickery-free interface may keep you in the legal clear.
The crux of marketing law is honesty. If something is an advertisement, label it. If you have a business or personal relationship with a product or service, disclose it.
Can I Get Away With Fake Testimonials By Using Disclaimer Links?
“Can’t I just pay someone for a testimonial and disclose that they’re fake in a disclaimer link — which nobody reads anyway?”
Having a link disclaimer may protect you in some cases, but it usually doesn’t work for unfair and deceptive marketing claims. Also, don’t be shady about disclosures. For example:
- Don’t bury disclaimers. Instead, place them close to the relevant content.
- Don’t make text a similar color to the background. According to case law, words must be readable without squinting.
Influencer and Affiliate Marketing “Techniques” that Could Invite Trouble
Are fake reviews illegal? Here’s a list of online review no-nos:
- Paying a person or using a service to “get” reviews
- Writing a review for a product you’ve never used
- Creating websites that purport to be unbiased consumer review portals, when in reality they’re designed to promote one brand
- Failing to disclose a material relationship
What Laws and Guidelines Should Influencers and Affiliates Know?
Anybody involved in advertising — affiliates, influencers, marketers, and business owners — should adhere to the Federal Trade Commission’s .COM DISCLOSURES and the Disclosures 101 for Social Media Influencers — the blow-by-blow government guides to online advertising and marketing.
Marketers must also mind guidelines outlined in the Lanham Act — aka the Trademark Act of 1946, which contains a section on false advertising and unfair competition.
Lastly, it’s a good idea to follow California’s online privacy laws, the most stringent in the United States. If people in California can use and interact with your site, then you’re beholden to the laws.
Can I Make Up Testimonials and Reviews? After All, How Will Anybody Know If They’re Fake!?
It’s tempting. How will anybody know if your testimonials are real or fake?
Well, for starters, using stock photography for the testimonial pictures is a dead giveaway. Also, the FTC can audit your site. If you don’t have actual customers to match with the testimonials, expect an FTC fine.
What Is the the FTC and Why Should You Care?
If you’re reading this, you’re interested in digital marketing. If you’re interested in digital marketing, then you need to know about the Federal Trade Commission (FTC).
Who are they? What do they do?
The FTC is the U.S. regulatory agency tasked with prohibiting “unfair and deceptive acts or practices in commerce.”
The agency enforces all affiliate and influencer marketing regulations. If you’re accused of false or misleading advertising, there’s a 99 percent chance the FTC is involved.
False Advertising in the United States: Definition
U.S. law codifies false advertising as:
“a means of advertisement other than labeling, which is misleading in a material respect; and in determining whether an advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.”
In other words, false advertising in the United States isn’t just about the aspects of an ad. Regulations also consider missing information and how omitted material can lead to consumer deception.
Does The FTC Consider Fake & Paid Testimonials Illegal?
The FTC released a set of “common sense” digital advertising guidelines. The commission lays out three guiding principles for influencers and marketers:
- Endorsements must be truthful and not misleading.
- If brands can’t provide proof that supports their claims, think twice about partnering with them.
- If there’s a material connection between the marketer and product brand, it must be disclosed.
The FTC is also intolerant of fake and paid reviews and testimonials. Using them could invite an unfair and deceptive marketing charge.
An FTC spokesperson explained, “While decisions will be reached on a case-by-case basis, the online post by a person connected to the seller, or someone who receives cash or in-kind payment to review a product or service, should disclose the material connection the reviewer shares with the seller of the product or service.”
Notable Unfair and Deceptive Marketing lawsuits Every Business Owner Should Know
| Case | Tactic | Outcome |
| Lifestyle Lift – 2009 | The company instructed employees to write positive reviews. Emails proved that management instructed employees to write anonymous reviews in the voice of satisfied customers. | The company settled with the NY AG’s office for $300,000. Andrew Cuomo , the AG at the time, said the “attempt to generate business by duping consumers was cynical, manipulative and illegal.” |
| Reverb Communications – 2010 | Reverb allegedly paid for positive reviews on iTunes. | The company deleted all paid testimonials and agreed not to stop the practice. However, the company didn’t pay a fine because it was the first business the FTC censured after the 2009 guideline changes. |
| Acai Berry Debacle – 2011 | Many acai berry marketers set up “fake news” websites with fake customer testimonials. | FTC launched national crackdown on the activity; froze accounts of affiliate marketers; clearly stated their position that hawking acai berries with fake reviews would end in legal troubles and fines. |
International Considerations
If you’re marketing to consumers outside of the United States, you must comply with various international standards. For example, in the United Kingdom, lawmakers list “falsely representing oneself as a consumer” as one of the 22 prohibitions in the “Consumer Protection From Unfair Trading” regulations. Officials can fine violators up to £5000 or throw them in jail for two years.
Connect with a Digital Advertising and Marketing Lawyer
Did you get a letter from the FTC? Or maybe you want to avoid one. Either way, I have the legal experience. For over a decade, my firm has worked with startups and established businesses on all manners of digital advertising and marketing legalities. I’ve won cases against the Federal Trade Commission and have helped company’s craft compliant marketing campaigns.
