A California appellate court allowed a woman to sue Toyota and its advertising firm for a social media oriented “ad campaign” titled “The Other You” in which Toyota allegedly e-personated a British fugitive headed to her house, with his pit bull, to hide out from the law. No, we don’t know how this was supposed to sell cars.
Toyota allegedly allowed its website visitors to prank friends by nominating them to be harassed by one of several fictional characters who, after five days, would reveal the prank. Toyota’s advertising firm created online personas for the characters including social media sites. They even recorded an album for a “heavy metal fanatic” character. The firm, Saatchi & Saatchi Los Angeles, reportedly felt this was a good way to “empower the consumer” to “be involved and feel like they were part of the process” in hopes of overcoming the prank-loving 20-something demographic’s resistance to traditional advertising.
The plaintiff, Amber Duick, was one such nominee. She first received an email from Toyota asking her to participate in an online “Personality Evaluation”. At some point during this evaluation Duick apparently clicked her agreement to “terms and conditions” informing her that she had been invited to participate in “The Other You”, described as “an interactive experience” and noting that she might receive emails, phone calls, and text messages during the “5-day experience.” The terms also contained an arbitration clause.
Soon after the “Personality Evaluation” Duick received her first email from “Sebastian Bowler” announcing that he was “Gonna lay low at your place for a bit. Till it all blows over. Bringing Trigger.” A subsequent message told her that “Trigger don’t throw up much anymore, but put some newspaper down just in case” and included Duick’s address. Later messages claimed that Bowler “had a brush with the law” but “seem[ed] to have lost the coppers”. Duick also got a message from a purported hotel manager billing her for damage caused by Bowler, whose fake MySpace page touted his alcoholism.
Toyota then put the brakes on the prank by sending Duick a video announcing that the ordeal had been part of an ad campaign for the Toyota Matrix. Rather than tempting Duick into a Toyota, “Bowler” triggered a $10 million lawsuit for intentional infliction of emotional distress, negligence, and false advertising.
Perhaps concerned California jurors might also not get the joke, Toyota attempted to enforce the arbitration provision, but the appellate court held that Duick’s consent was procured via fraud because “a reasonable reader in Duick’s position would not have known that she was signing up to be the target of a prank.” Indeed, as the court notes, the prank would have been self-defeating if disclosed at its outset. This of course, raises the question whether Toyota’s communications should be treated as expressive, rather than commercial, speech and benefit from full, rather than limited, First Amendment protection?
Toyota and Saatchi may not have done much better than Duick at reading terms of service – MySpace’s terms prohibit “information that you know is misleading”, “impersonating or attempting to impersonate . . . another member or person or entity” as well as posts that “involve commercial activities and/or sales without prior written consent from MySpace.” Congress is now debating whether to expand the Computer Fraud and Abuse Act so that terms of service violations could be prosecuted as felonies (they already could be misdemeanors during the Matrix ad campaign).
Previously on Post or Perish: Fraud Claim Against Mass E-Personator Survives Dismissal