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Is anyone aware of any law (statutory or case-specific) in the U.S. or any of its states (or any jurisdiction in the world, for that matter) that prohibits or makes it illegal to falsify a testimonial?

Example

  • "This is the best I've product ever used!" - Jane Doe, CEO Newco
  • "This product solves all my problems!" - James Kirk, CEO Enterprise

The closest I can find is here.

https://www.law.cornell.edu/uscode/text/15/52

15 U.S. Code § 52 - Dissemination of false advertisements

(a) Unlawfulness. It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement—

(1) By United States mails, or in or having an effect upon commerce, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices, services, or cosmetics; or

(2) By any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in or having an effect upon commerce, of food, drugs, devices, services, or cosmetics.

(b) Unfair or deceptive act or practice. The dissemination or the causing to be disseminated of any false advertisement within the provisions of subsection (a) of this section shall be an unfair or deceptive act or practice in or affecting commerce within the meaning of section 45 of this title.

For the purpose of this question, assume there is no actual person named Jane Doe who is the CEO of a company called Newco or James Kirk who is the CEO of Enterprise.

I know puffery is affirmatively allowed. But this is different. It's about false testimonials.

Edit: Although there is already an accepted answer (because it answers the question), other answers for other jurisdictions are welcome and will be encouraged with upvotes if they cite either statues or cases.

Alexanne Senger
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  • I believe in the United States opinions are protected under the first amendment. This generally means that you can't be sued for giving your "opinion". As long as it is worded as one, it should be protected. – Viktor Dec 10 '15 at 17:00

1 Answers1

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In Australia, Australian Consumer Law (and the various state Trade Practices Acts) prohibits misleading and deceptive conduct. This includes any kind of false or misleading statement, and explicitly includes false testimonials:

It is illegal for a business to make statements that are incorrect or likely to create a false impression. This includes advertisements or statements in any media (print, radio, television, social media and online) or on product packaging, and any statement made by a person representing your business.

For example, your business must not make false or misleading claims about the quality, value, price, age or benefits of goods or services, or any associated guarantee or warranty. Using false testimonials or ‘passing off’ (impersonating another business) is also illegal.

Notwithstanding the above, puffery is also affirmatively permitted.

For example, in Volunteer Eco Students Abroad Pty Limited v Reach Out Volunteers Pty Limited [2013] FCA 731 the court found that the operators of a business had contravened the Trade Practices Act (the State implementation of the national Australian Consumer Law) by publishing testimonials that were made by people who had never used their service (tours). The cited authority is also relevant (Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd (No 3) [2006] FCA 1066).

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jimsug
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  • Thanks. Would you happen to be able to direct me to any cases where this law was enforced as it relates to false testimonials? I am curious how a prosecutor would prove that a testimonial was falsified. Especially if the purported person making the purported testimonial was also falsified. Unless there was a conspiracy to do so and a paper trail. Otherwise, if it's just a single person producing the testimonial, how could the prosecution ever prove it was never made? Since there would be no evidence, presumably, to rebut it. Any thoughts or insights? – Alexanne Senger Dec 10 '15 at 03:33
  • @Mowzer: Surely a prosecutor or plaintiff could produce evidence that no company called Newco exists (no record of it in business registrations, Internet searches, etc), and likewise that there is no such person as Jane Doe. – Nate Eldredge Dec 10 '15 at 17:20
  • @NateEldredge: Sir, I ask you to think critically in this situation. How could one conceivably prove there is no person with a particular name? Is there a list or a database somewhere that lists every person in the world and every name they might use including nicknames and aliases? is there similarly a single list or list of lists or list of lists of lists that contains every business name? Please keep in mind, every business does not need to be registered or recorded with a state authority. Then there is the issue of companies outside the jurisdiction of enforcement. Foreign companies, etc. – Alexanne Senger Dec 10 '15 at 17:44
  • @NateEldredge: Think of it this way. If I search my whole house for a set of, let's say, keys you claim you left there. And I don't find them. And, similarly, I question everyone who was ever in my house if they found your keys. And your keys don't turn up and no one claims to have found your keys. Does that prove your keys are not in my house? Of course not. It just means no one has found them yet. But it does not remove all reasonable doubt that the keys are there if you say you left them there and I have no evidence or reason to believe you are lying. Correct? – Alexanne Senger Dec 10 '15 at 17:50
  • @Mowzer: It wouldn't be proof that no such person exists - it would be evidence that no such person exists. Civil court cases (in the US) are not decided based on absolute proof, but on the preponderance of the evidence. I believe something like a negative records search would constitute evidence that the person doesn't exist. The defense could then rebut this, if possible, by producing evidence that the person does exist; but if they don't, the court could plausibly use this to rule that the testimonial is false. – Nate Eldredge Dec 10 '15 at 17:50
  • @NateEldredge: What you describe is not *evidence. It is lack of evidence. I guess we disagree. Simply put, my position is... Lack of evidence does not constitute evidence*. Apparently, you hold a different point-of-view. – Alexanne Senger Dec 10 '15 at 17:53
  • @NateEldredge: Also, regarding your hypothetical... A sufficient rebuttal of the negative records search does not need to include producing evidence the mystery person exists. It would be sufficient to simply produce expert testimony of the many possible ways the negative records search could miss such a person assuming s/he does exist. – Alexanne Senger Dec 10 '15 at 18:58
  • @Mowzer In certain cases the rules of evidence used in most civil trials allow a judge or jury to make inferences based on a party's failure to provide evidence that would support their position. In this case, not producing as a witness the person who they claim made the testimonial would be very damning. https://en.wikipedia.org/wiki/Adverse_inference – Ross Ridge Dec 10 '15 at 18:59
  • Inserting into this discussion a cross-reference to the question Mowzer asked: http://law.stackexchange.com/questions/5732/does-lack-of-evidence-constitute-evidence/ (and +1 to Mowzer for having an open mind to points of view Mowser obviously disagrees with.) – WBT Dec 10 '15 at 19:17