Smoke on the Water, Part 3: The Free Speech Rights of Advertisers
Chairman Goodlatte of the House IP subcommittee held the first of a series of hearings on the fundamental question of the rogue sites legislation: What is the principled jurisprudence behind why an artist is permitted to call the police when the artist’s car is being stolen, but is forced to litigate their right to call the police when their life’s work is being stolen?
Several Members on the committee raised the issue of protecting the free speech rights of rogue sites, and users who like to read the articles on message boards hosted on rogue sites. One of the witnesses gave an example of speech of concern to him: users who post the new URL of sites that had been taken down by ICE.
One group whose free speech rights were not discussed: Advertisers.
I would suggest that there are several steps the Congress could take that would go a long way toward fixing an anomaly in the market that allows rogue sites to be rewarded for stealing the life’s work of creators. These are best summarized by Professor Ben Edelman of the Harvard Business School in his “bill of rights for advertisers” which offers a robust multi-tiered approach easily adopted in regulation and against which one can imagine little principled objection. Consider right #1: The advertiser’s right to say no.
Ask Advertisers Where They Want Their Ads to be Placed
It usually comes as a surprise to the casual observer of ad-supported piracy that advertisers—the true source of the revenue for these rogue sites—are kept in the dark about the ultimate destination of their ads. As Professor Edelman says, “It is nonsense to pay for ad space without knowing where an ad will appear; sites vary too much in user quality and context.”
Refusing to tell advertisers where their ads appear is a common practice, in fact is the industry standard.
Why might that be the case? Is it that the adserving company doesn’t want to bear the cost of producing the information for its clients, or is it that the adserving company doesn’t want to get the advertisers’ approval. Or take a chance that the advertiser might leave the service or worse yet—refuse to pay for advertising on sites that it had instructed the adserving company were not to have the advertising.
Yet by producing this piece of information—no law enforcement costs to the government involved—advertisers speech rights are protected and Congress helps the market to correct for many of these anomalies.
Clearly, providing decent accounting information and true choice to advertisers is not a panacea. But it is certainly something that the Congress could do tomorrow as an undeniable benefit for truth in advertising.
It is the FTC’s long held view that “cyberspace is not without boundaries, and fraud and deception are unlawful no matter what the medium. The FTC has enforced and will continue enforcing its consumer protection laws online to ensure that products and services are described truthfully in online ads….These activities benefit consumers as well as sellers, who expect and deserve a fair marketplace.” (emphasis mine)
Requiring the FTC or other government agency to enforce such a law as part of the FTC’s “truth in advertising” regulations is a vital part of aiding law enforcement —particularly if the Congress retained oversight over the law to make sure that powerful commercial interests were not able to take advantage of special treatment by industry insiders who come through the revolving door into the agency.
It would also go a long way toward stopping adserving companies from free-riding on the brands of unsuspecting advertisers as well as the life’s work of artists.
Stop the Money
I was pleased to see that for the most part, members of the IP subcommittee were prepared to “follow the money”. By protecting the rights of advertisers, the Congress could go a very long way to “stop the money”.