Under the common law, civil actions could be brought for deception involving false statements between the buyer and seller, however, successful suit required a showing of injury. The victim would recover the difference in value between the product as sold and as stated. Thus, recovery was limited and the individual would not have strong incentives to bring suit.
The common law treated difficult to detect frauds as public wrongs, in recognition that such frauds presented a collective action problem. For instance, falsifying a weight or scale in order to cheat the buyer would be a common law fraud, remediable by criminal punishment, because no one individual is likely to detect the fraud, but many are likely to be affected by it.
Public prosecutions could be brought where private transactions deceived the public at large. While this principle seems directly applicable to advertising, a different common law requirement—intent to deceive—complicated matters. As buyers were increasingly divorced from dealing directly with creators of products, it became easier to introduce deception into a transaction, and more difficult to prove a specific intent to defraud. Advertising itself creates a problem because it is possible to create misrepresentations without an in-person interaction. Modern deception problems involve implicit misrepresentations, and these may have been accidental or intentional. Sometimes advertisers subjectively believe false claims about their own products.[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”]
Common law fraud could also result in the revocation of a corporate charter, and this is a remedy that modern progressives sometimes invoke as a cure to corporate power. But public policy easing barriers to formation of corporations makes this a weak remedy—fraudsters can quickly incorporate in another state.
While on their face, the common law fraud remedies appear to address modern consumer protection, in practice they failed. Proving intent to deceive was a substantial barrier to success in suit. Prosecutors have limited resources, and preferred to use them against crimes that caused physical harm or large scale financial harm. The common law required that the buyer was an actual recipient of the misrepresentation and relied upon it. The problem of proving damages also was a barrier to suit.
Information privacy wrongs share some of the same characteristics as false advertising harms. In false advertising, the law no longer requires an intent to deceive. Legislatures can establish presumed damage awards as well.
 Lowell Mason, The Language of Dissent 162 (1959)(“…many of those who get into trouble over false and misleading claims for their good do so from sheer industrial conceit. They truly think their merchandise is not only good, it’s the best…”)[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]