23 July 2021

How to tackle the scourge of fake “advertorials” and social media accounts that abuse the reputations of well-known individuals.

The internet has facilitated a new type of crime by providing tools for fraudsters to create websites that are used as vehicles for the publication of fake ads (“advertorials”.)  The ads are designed as news articles promoting bogus financial investment schemes which give the false impression that they are endorsed by well-known individuals.

In other words, the advertorials con people into investing in fake investment schemes while simultaneously defaming well known individuals by falsely implying or stating that they endorse same.

The scale of this type of fraud is evident from an article published in  [i]The Journal newspaper on 10 July 2021 which reported that the Garda National Economic Crime Bureau estimates that tens of thousands of euros is lost to these fraudsters weekly.

The well know individuals whose names and images are misappropriated and whose reputations are tarnished are victims just the same as those who lose money through these sophisticated scams.   Both types of victims face the same difficulty of identifying the perpetrators of the scams who often hide behind privacy proxy services.[ii]

While the fraudsters remain anonymous it follows that no legal action can be taken against them.

However, are number of options open to those defamed by such scams through the more audacious pursuit of internet intermediaries for remedies:

1. Request internet service provider to delist sham websites and fake social media accounts. De-indexing (also known, de-listing) usually involves adding a code to the content in question which ensures that search engine will not pick it up in its search results although the web page or social media account where it originates will remain in existence.

2. Request social media platforms on which the fake ads are posted to remove them (“takedown requests”).

The above actions have the advantage of being quick, relatively inexpensive and effective methods of removing fake content from the internet or at least from search results. The disadvantage of these measures is that they will not prevent new fake ads or social media accounts from popping up.

Whether the intermediaries comply with such requests depends to some extent on providing them with reasonable evidence that the impugned content is factually inaccurate.

3. Seek an injunction prohibiting further publication and bring an action for damages against internet intermediaries on the basis that they are responsible and accountable for allowing a person’s name and photos to be misappropriated and used in fake ads and fake social media accounts posted on their platforms.

Such legal action is likely to be met by a complete denial of liability by the intermediaries and they may seek to rely on the following defences:

a)Innocent publication.

Pursuant to section 27 of the Defamation Act 2009 Act it is a defence to a defamation action for the defendant to prove that he was not the author/ publisher, took reasonable care with the publication and did not know and had no reason to believe the publication was defamatory.

b) Hosting immunity provided by Regulation 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (SI No 68 of 2003) (transposing Article 14 of the e-Commerce Directive 2000/31/ECinto Irish law).

The “hosting defence “protects intermediaries from liability for defamation so long as they have no actual knowledge of the defamation. Once it obtains such knowledge the host must act quickly to remove the defamatory publication to avoid liability.

Whether or not such defences succeed will turn on the facts of the particular case. If the defamed victim can prove that the intermediaries were on notice of a defamatory publication and failed to act expeditiously to have it removed or delisted, then arguably the above defences could not be relied on to defeat a claim.

Keeping a record of all take down and de indexing requests, to include screen shots of any completed online forms and subsequent correspondence with the intermediaries may turn out to be very useful if there is a dispute over the intermediaries’ knowledge or absence of knowledge of the defamatory publication.

4. Seek to unmask the creators of the fake web sites by applying to court for orders (“Norwich Pharmacal Orders”) compelling the search engines and or social media platforms to disclose all data held by them relating to the identity of the wrongdoers who created and or control these sham web sites and or user accounts.

These disclosure type orders are discretionary in nature. Before granting such an order a court must be satisfied that there is clear evidence of wrongdoing. Unfortunately the only outcome of a successful application might be the receipt of meta data which may or may not be enough to unmask the fraudsters’ identity.

Uncertainty as to whether a Norwich Pharmacal Order might yield any real results allied to the legal costs involved underscores the importance of carrying out a cost/ benefit analysis prior to bringing such an application.

In summary, the quickest and most cost-effective way of procuring the removal of fake advertorials is probably by making take down and removal requests to the intermediaries each time a new one appears. However, there may come a point where despite repeated attempts to have the publications removed, they continue to reappear and suing for damages for defamation may be necessary.

[i] “Garda say Irish fraud victims have lost thousands on fake news articles about high – yield investments” by Niall O’Connor 10 July 2021, The Journal.

[ii] “ The Slander Industry” By Aaron Krolik and Kashmir Hill April 24, 2021, New York Times

If you require any information in relation to the above, please contact Mary Tobin, mary.tobin@meaghersolicitors.com

Disclaimer

This article contains general information only based on Irish Law and does not constitute legal advice nor is it intended to provide a comprehensive or detailed statement of the law.