A woman who was targeted by Toyota in a creepy, stalker-themed online advertising stunt will be allowed to sue the company, despite the carmaker's argument that she unknowingly agreed to the whole thing.
Amanda Duick sued Toyota in 2009 over its intrusive "Your Other You" campaign, after she began receiving frightening e-mails over a number of days from a strange man. The man, who had her home address, told her he was on the lam from the law and needed to crash at her place for a bit to hide out with his pit bull, Trigger.
According to a court document (.pdf), "Sebastian Bowler," who appeared to be a 25-year-old Englishman and soccer fanatic with a drinking problem (based on the MySpace page he sent Duick), told the plaintiff that he was on a cross-country road trip and would be at her house in a few days. After Bowler wrote that he'd run into some trouble at a motel, Duick received an e-mail from someone purporting to be manager of the motel, who included a bill to Duick saying she was responsible for a TV Bowler had smashed.
Duick freaked out over the e-mails before she received a message directing her to a video explaining she'd been punked by Toyota. The video explained that Bowler was a fictional character, and the whole thing had been an elaborate prank—part of an ad campaign for Toyota's Matrix car.
Unknown to Duick, someone had signed her up for the campaign at YourOtherYou.com, a web site set up for the prank. The campaign was aimed at 20-something males because the company's advertising firm, Saatchi & Saatchi LA, determined that the demographic loves to punk their friends.
Ads in print, online and on billboards drove traffic to the YourOtherYou web site where people could enter the name and details of someone they wanted to punk with the campaign. The person could choose one of five fictional characters – among them a heavy metal fanatic and a soccer hooligan—who would barrage the designated friend with text messages, phone calls, e-mails and videos for five days.
The aim was to freak out the friend by making him or her think the stranger possessed personal information about the target—phone number, home address—and was on his way to visit.
Saatchi & Saatchi made sure the deception was complete by going so far as to create online personas for the fictional characters, including a band web page for the heavy metal fanatic. The agency even recorded an album for the fictional character's fictional band.
"Even when you get several stages in, it's still looking pretty real," Saatchi creative director Alex Flint said about the campaign in 2008. "I think even the most cynical, anti-advertising guy will appreciate the depth and length to which we've gone."
Duick, however, didn't appreciate it. She sued Toyota and Saatchi & Saatchi and fifty individuals associated with the campaign for intentional infliction of emotional distress; unfair, unlawful, and deceptive trade practices; and negligent misrepresentation, among other things. She's seeking $10 million in compensatory damages.
Toyota moved to dismiss the suit, insisting that an online terms-of-service agreement that Duick had clicked on authorized the company to send her the e-mails, and also included a provision that any disputes over the campaign would have to be handled through arbitration. Therefore the case, Toyota maintained, did not belong in court.
But a California Appellate judge ruled last month that Toyota had enticed Duick to click on the agreement under false pretenses, thus invalidating the arbitration provision. According to the suit, after Duick's friend signed her up to participate in the campaign without her knowledge, she received an e-mail with a link to a web site where she was invited to have a personality evaluation. Duick clicked on the agreement, which made only cagey references to an "interactive experience" and a "digital experience," thinking she had signed up for a personality test. Later, she began receiving the disturbing e-mails from the strange soccer hooligan, "Bowler."
The court ruled that the ToS was void due to "fraud in the inception," stating that the defendants "misrepresented and concealed (whether intentionally or not) the true nature of the conduct to which Duick was to be subjected."