Yesterday’s Times has a short report on the Unfair Commercial Practices (PDF) directive – and in particular, the provision prohibiting posing as a consumer (a particularly obnoxious strain of astroturfing). As the Times reports, this may have a significant impact on bloggers, review sites, and so on. Who hasn’t suspected that the odd blog comment or TripAdvisor review is a little too over the top? Well, if it’s done in the course of commerce (don’t worry, posting anonymous comments on Indymedia or about how great/evil X political party is isn’t affected!), it’s about to be a fairly significant legal matter…

It’s an interesting story, and one of special relevance in Ireland, as the Consumer Protection Bill has just been published. The Bill transposes the directive (and does lots of other fun stuff too). It’s not expressed in technological terms at all – though of course there are particular issues with detection and enforcement when such law is applied to ‘anonymous’ commenting systems. The National Consumer Agency will have great fun in dealing with complaints relating to this problem.

So indeed, the same provision referenced by the Times is in the Bill here – chapter 4 (“prohibited commercial practices”), section 52(x):

S. 52
A trader shall not engage in any of the following commercial practices:

(x) making a representation or creating an impression that the trader (i) is not acting for purposes related to the trader’s trade, business or profession, when the trader is so acting, or (ii) is acting as a consumer, when the trader is not;

This is taken directly from Annex I of the Directive. Section 52 prohibitions are serious: as the explanatory memorandum puts it, the section “lists specific commercial practices that are prohibited regardless of their effect on the transactional decisions of the average consumer” (in contrast with other sections, which have more limited application to practices that would mislead the average consumer into making a decision they otherwise wouldn’t). It’s a serious criminal offence, and as well as the usual penalties, courts can “order the person to publish, at the person’s expense and in any manner the court considers appropriate, the facts relating to the commission of the offence and a corrective statement in respect of those facts.” Which, in the context of online fake consumers, will be interesting to see.

Finally, a personal comment. I do have an attachment to the anything-goes, free-wheeling, gloves-off culture that characterised the earlier part of my engagement with the Web. And I have an instinctive hostility to speech regulation. However, as online business and online discussion of business becomes more and more ‘normal’, that idealism can’t stand untouched.

Corporate shills have never subscribed to those sorts of Internet ideals – you could argue that any of the negative consequences of this sort of speech regulation are entirely their fault. As long as this provision is confined to traders misrepresenting their status – or in normal language, “telling lies to make money” – it is simply a corrective device and can potentially enhance the freedom and fun that still runs through a lot of comment- and participation-based Web applications. Of course, this provision can apply to offline lies too – but something tells me that the problem is a lot more prevalent in the virtual space than in the olde worlde.