Spam Comments: Right or Wrong?

From time to time I’ll get a comment on this blog that doesn’t appear to belong here. Most of these are obvious advertising messages left by automated software (generically known as “spam bots”) attempting to trick the unwary into purchasing a $50 knock-off of a $500 clothing or accessory item that is actually worth less than the cost of shipping it to you – assuming that it is actually shipped to you, and they don’t just rip off your credit card information and steal your identity. It’s hard to imagine who falls for these scams in the first place, but people obviously do; even the famous “Nigerian Prince” scam nets enough new victims each month that people keep on trying it. You, my actual readers (assuming I have readers) never see any of these “ads” because Blogspot requires all comments to be moderated, and I usually just delete them as soon as they come in; any web page that is actively monitored generally does the same, destroying the vast majority of these efforts before anyone ever sees them. A much more interesting question is whether the senders have a legal right to post these things in the first place…

A recent post on the Consumerist website talks about a tool-review website that keeps getting hit with spam comments written in support of the Home Depot chain and its products, and the company’s (apparently mortified) attempts to distance themselves from these comments and deny responsibility for them. Several of the people commenting on this story mention legislation requiring bloggers to disclose their relationships to any company they write in praise of, but even if this sort of law were to be enacted, it’s hard to say how you could enforce it against bloggers or people who comment on blogs, even assuming such a law was constitutional in the first place. Certainly, there’s no legal grounds for keeping private citizens from commenting on a business or product they encounter, and there’s generally no way of telling where Internet comments are coming from in the first place…

Consider, for example, a case where a private citizen is so fond of a particular business that they visit websites, discussion boards and blogs where that business is relevant to the topics being discussed, and leave comments in praise and support of that company. The person making the comments has no financial connection or obligation to do this; they just want the company to prosper and grow, say the way I do with The Grand Traverse Pie Company . It would be hard to argue that my right to say “The Grand Traverse Pie Company is Great!” is not protected speech under the First Amendment (disclosure: I receive no financial, moral, or legal support from the Pie Company; I don’t even use their wifi to upload these posts). I like their products, and want to see them continue operations and open more locations in places convenient for my use. But suppose I had a relative who did work for the Pie Company; would this still be protected speech? Suppose it’s a close relative who might owe me money, and could conceivably pay me out of their wages; is that still free?

Now let’s suppose that an actual employee of any company goes on a few websites and leaves comments in praise of their employer. The employee is not being paid to do this; they are not using company assets or doing the postings while on the clock; they’re just telling people who might need the information about things their employer has available. Is this still a protected activity, or should it be considered advertising and regulated? For that matter, if a company starts paying people to tell potential customers about their products and services, should that be considered free speech? Does it matter if the products or services are important, hard to find, or have the potential to save lives? Or, to reverse the question, if your company makes a product that could potentially save people from unpleasant experiences (including death), should restrictions placed on advertising activities apply to your efforts to use social media to promote your business? And who gets to draw that line?

It’s a minor point, perhaps, but I call it to your attention because it’s a fact of life in our new world on the Internet. Perhaps one day all of these activities will look as quaint as the advertising methods of the early Industrial era do today, and new standards of business and behavior will have made spam comments too ham-handed and gauche for anyone to seriously consider using. A lot of that will depend, however, on how we react to these comments here and now…