Can Posts Accusing of Stealth Marketing and Deception be Removed for Defamation?

For businesses, having comments on anonymous bulletin boards such as 2channel or 5channel, or on review sites like Yahoo! Chiebukuro or Amazon Customer Reviews, stating that your company is engaging in “stealth marketing” or “self-promotion by giving high ratings” can be a significant drawback in terms of both sales and recruitment. In today’s world, it is common for consumers to search for the name of the product they are considering buying or the name of the company selling it on a search engine before making a purchase. If rumors appear in the search results that the company is boosting sales through stealth marketing or self-promotion, it may cause hesitation in purchasing. Similarly, if there are suspicions of stealth marketing or self-promotion about a company that someone is considering applying to for a part-time job, it may cause hesitation in applying for the job.

Is it possible to delete statements such as “engaging in stealth marketing”, “conducting stealth marketing”, or “doing self-promotion”?

As a related but distinct topic, we have explained in the following article the theme of “Can stealth marketing articles or stealth marketing sites by other companies be deleted if it is clear that the other company is using stealth marketing methods?”

https://monolith.law/reputation/stealth-marketing-delete[ja]

Is Being Accused of Stealth Marketing or Self-Promotion Considered ‘Defamation’?

When your company is suspected of stealth marketing or self-promotion, you may need to consider whether such allegations constitute defamation. If they do, you may be able to request the removal of the offending article or the disclosure of the IP address of the person who posted it.

So, does being accused of “engaging in stealth marketing,” “using stealth marketing tactics,” or “self-promotion” constitute defamation?

In simple terms, defamation occurs when:

• A ‘specific fact (matter)’ about your company is stated,
• That fact has resulted in a decrease in your company’s ‘social reputation,’ and
• The statement contradicts the truth.

These are the conditions that must be met.

https://monolith.law/reputation/defamation[ja]

What is meant by “Specific Facts”

Defamation does not simply occur because “something unpleasant about our company is written”. What is written must be a “specific fact”. For example, if it is simply written that it is a “bad company”, it is difficult to say what is “bad” and what is “specific”.

Definition of Stealth Marketing

However, stealth marketing, for example,

Stealth marketing is a form of advertising and promotional activity that is carried out in such a way that consumers do not realize it is an advertising or promotional activity. It is often referred to as undercover marketing in English.
(omitted)
Stealth marketing typically involves a person commissioned by the seller or advertiser pretending to be an unrelated third party and conveying a positive review. It appears to be a fair evaluation from a neutral standpoint, or a simple consumer opinion, and communicates a good reputation to the public, but this is done as a “setup” in response to a request from the seller. In other words, it is a “fabrication”.

What is Stealth Marketing? Weblio Dictionary [ja]

It is a word commonly used in this definition, and ultimately, it is a word with a specific meaning that a company makes a request to a third party, but the third party pretends to be a neutral position unrelated to the company and sends a high evaluation in the form of a “fabrication”.

Definition of Self-Performance

Self-performance is similar, for example,

Self-performance on the Internet is an act of making it appear as if multiple people are active at the same time on a single website by one person. When referring to this act on the Internet, it is often simply abbreviated as self-performance.

Self-Performance (Internet) – Wikipedia [ja]

It is a word with a specific meaning.

In this way, whether a negative evaluation of your company on the Internet, such as “doing stealth marketing”, constitutes defamation depends in part on the specific meaning of the word. Therefore, it is necessary to check the specific meaning of the word by referring to dictionaries and the like. Although I have quoted information from the Internet here, in actual trials, dictionaries and dictionaries with a certain history and authority are often used.

Judgment based on “ordinary attention and reading of general readers”

Moreover, it should be noted that what can be said to be written is judged based on the “ordinary attention and reading of general readers”. In other words, even if “stealth marketing” is not directly written, if it is written in such a way that it can be read as “doing stealth marketing” in the context, it can be judged that the fact that “doing stealth marketing” is written. For example, writing “How much did you get for advertising?” for a review praising a product can also be said to imply the fact that “the company is doing stealth marketing”.

Even if it is not directly said “stealth marketing” or “self-performance”, how convincingly you can argue that it can be read as “stealth marketing” or “self-performance” in the context is a very important point in provisional dispositions and trials, and in out-of-court negotiations conducted with them in mind.

What is a “Decline in Social Reputation”?

Defamation does not simply occur when “something different from the truth is stated”. It only occurs when “being said so would lower the company’s reputation”. The reputation referred to here is the “social reputation” in technical terms, which is the evaluation from third parties outside the company, such as consumers and job seekers.

Stealth Marketing and Self-Promotion Lower Social Reputation

Therefore, you must demonstrate that word-of-mouth such as stealth marketing and self-promotion lowers the reputation of your company. There are also court cases that have made judgments that the mention of “stealth marketing” lowers social reputation.

Whether the said display defames honor or credit should be judged based on the normal attention and reading of general readers. In the case of normal attention and reading by general readers, the above (omitted) display can give the impression that the word-of-mouth of the plaintiff’s teaching materials is not created by those who actually purchased and used the plaintiff’s teaching materials, but is a lie created by the plaintiff through stealth marketing, that is, there is a possibility that it was intentionally created by the plaintiff or a third party. It should be said that the fact that the plaintiff, a corporation engaged in the planning, development, and sales of foreign language teaching materials, may be creating high-rated word-of-mouth for its teaching materials, which are the products it sells, lowers the plaintiff’s social reputation such as honor and credit.

Tokyo District Court, June 4, 2014 (Heisei 26)

This judgment does not state a particularly clear basis, but at least it clearly judges that if a company that is engaged in “planning, development, and sales of foreign language teaching materials” is said to “have a possibility of creating high-rated word-of-mouth for its teaching materials”, its social reputation will decline. Generally speaking, for a company that is doing business, the reputation that it is conducting stealth marketing and self-promotion for its products will lower its social reputation.

The Argument that “Stealth Marketing is Illegal”

In practice, to argue that “doing stealth marketing” lowers social reputation, it seems that many cases make the following arguments.

(Plaintiff’s argument)
(Omitted)
“Stealth marketing” is an abbreviation for “stealth marketing”, a method of advertising without being noticed by general consumers, such as displaying as if the reputation of general consumers is good in the form of word-of-mouth and impressions for advertising their own products. Such acts can violate the Act against Unjustifiable Premiums and Misleading Representations (hereinafter referred to as the “Premiums Act”) when they cause general consumers to misunderstand that the content of the goods or services of the business operator is significantly superior or advantageous than the actual ones (omitted later)

Tokyo District Court, June 4, 2014 (Heisei 26)

This argument is,

1. Stealth marketing can be an act that violates the Premiums Act
2. From 1, saying “doing stealth marketing” is stating a fact that can be an act that violates the Premiums Act
3. For a company, being said to be violating the law lowers its social reputation

It can be said that this is the argument. As a practical sense, “being said to be violating the law lowers social reputation” is a relatively convincing argument to the court, and it can be said that the above argument also uses this framework.

Proof of “Contrary to the Truth”

Defamation only occurs when the matter stated is contrary to the truth. Therefore, in order to establish that suspicions of stealth marketing or self-promotion are “defamatory”, whether or not your company is using such methods becomes a crucial point.

So, how should we gather evidence to prove that we are “not engaging in stealth marketing”?

Proof by Statements from Public Relations Officers, etc.

While this is a problem that requires strategic thinking for each specific case, the following are commonly used methods.

Firstly, the entities that engage in stealth marketing, according to the definition of the term, are essentially third parties outside the company, namely outsourced companies. In many companies, when outsourcing internet-related tasks, public relations officers or similar roles should be defining the specific requirements. Also, the entities that engage in self-promotion, according to the definition of the term, are essentially internal staff. Similarly, in many companies, if self-promotion is to be carried out on the internet, the actual work should be done by public relations officers. Therefore,

• A statement from the public relations officer who manages the company’s internet-related outsourcing and defines the requirements, providing information about the list of outsourced companies and stating that “our company does not outsource such tasks”
• Contracts with each outsourced company, detailing the content of the work
• Invoices from each outsourced company, detailing the content of the work
• A statement from the public relations officer who manages the company’s internet-related public relations activities, stating that “I have not been asked to do such tasks, nor have I instructed my subordinates to do so”

These can be submitted as evidence.

Case-by-Case Judgment is Necessary

In this way, in provisional dispositions and trials, “evidence” is required for all points. Although the above mentions two places as “statements”, needless to say, evidence is preferably objective, such as contracts and invoices. This is because a statement is merely “what that person is saying”. It is inevitably “weaker” compared to objective evidence such as contracts.

Therefore, ultimately, under the specific circumstances of the case, it is necessary to consider how to gather “strong” evidence. This is a very important point in provisional dispositions and trials.