Marketing Advertising Law Briefing
Advertising law is one of a set of laws that is common to many countries, primarily as laws concerning deceptive advertising; that is, advertisements which are not clearly labelled as advertisements. For example, in the USA deceptive advertising is addressed by Section 5 of the FTC Act and in the UK, it is covered by The Control of Misleading Advertisements Regulations 1988.
Search marketing is simply another form of marketing. As such, it is not beyond the law. It would be foolish to expect to be operating in a multi-billion dollar global marketing industry and not expect to comply with marketing laws and regulations in the countries in which you are marketing.
In 2001, CommercialAlert filed a complaint with the FTC in the USA, against search engines for deceptive advertising in the search results. The crux of the complaint was as follows:
Advertisers pay the search engine companies to have their products and services listed "high" in or near the search results. Thus the listings look like information from an objective database selected by an objective algorithm. But really they are paid adverts in disguise.
In 2002 the FTC found in favour of the CommercialAlert complaint. They used some interesting language in their response to CommercialAlert:
Any websites or URLs that have paid to be ranked higher than they would be ranked by relevancy, or other objective criteria, should be clearly labelled as such using terms conveying that the ranking is paid for. In the staff's view, to avoid deception such labels need to convey that the sites listed are placed higher, or otherwise presented more prominently, because they have paid for their ranking or position, rather than solely based on some objective criteria relating to the probable relevance of their content to any particular search request.
Unfortunatley, the search engines have created algorithms that clearly benefit some website over others on factors other than relevancy and popularity, and we would argue that this law has been sidestepped. The only way to play is using teh search engine's rules - irrespective of legislation.
The FTC had found a case for deceptive advertising when search engines were being paid to place advertisements in the search results which did not warrant their placement based on a notion of "relevancy, or other objective criteria". It was suggested to search engines that they label their advertisements and inclusion criteria more clearly (There is some debate over whether they have done this, but the "Sponsored Links" tries to cover this).
In the USA at least, then, it is possible for deceptive advertising to be present in organic search results. One method of achieving this has been established - the acceptance of a fee by the search engine in order for unlabelled advertisements to masquerade as objective search results in its listings.
Instead of paying the search engine as in the above case, a search marketer deceived the search engine to achieve the exact same result - an unmerited placement (according to, as the FTC put it, "relevancy, or other objective criteria") of its listings in search results. This can also be deceptive advertising as:
- Deceptive advertising laws are designed to protect consumers - In this case, consumers are searchers
- The searcher whom the laws are designed to protect sees the exact same result in both cases (search engine being paid or search engine being deceived) - a listing which does not merit its prominence but is instead an advertisement in disguise. It would appear that if searchers are in need of protection from deceptive advertising by search engines, then they are also in need of protection from deception by search marketers
Is it material that the search engine is paid in one instance, and not in another? It's not material from the perspective of the searcher that the laws are designed to protect. However, it could affect culpability. Clearly, if a search engine accepts payment for placement of deceptive advertisements then it is responsible for those deceptive advertisements. However, if a search engine is deceived by a search marketer into placing deceptive advertisements, where does the responsibility lie? At least some of the responsibility must lie with the search marketer.
In 1999, Carlos Pereira found this to his cost when the FTC halted his pagejacking scam, which deceived searchers into visiting adult sites. This case established the principle that individuals and companies, rather than search engines, can be held liable for deception in search results.
Pereira's deception was on a grand scale, presenting content that any sane objective observer would agree was irrelevant to the search term. However, the deception employed by search engines when the FTC found a case against them was much less severe. Most objective observers would agree that the content presented was relevant to the search term. The problem was that it wasn't relevant enough to warrant its position, placement or prominence in the search results, which had instead been achieved through deceptive commercial influences.
Glossary: Advertising, Adware, Affiliate Fraud, Algorithms, Ambush Marketing, Astroturfing, Bait & Switch, Black Hat SEO, Blacklist, Can-Spam, Cloaking, Comparative Advertising, Cybersquatting, Dark Marketing, Decoy, Denial of Service Attack, Flaming, Grey Hat SEO, Link Baiting, Link Farm, Malware, Masking, Obfuscation, Pay per Click, Pharming, Phishing, Scumware, Search Engines, Search Engine Marketing, Search Engine Optimisation, Search Engine Results Pages, Siphoning, Spam, Spider Trap, Splogs, Spyware, Subliminal Advertising, Trojan Virus, Troll, Trust, TrustRank, Uniform Resource Locator, Virus, Website, White Hat SEO