Will the adware industry beat Spitzer?
CNET - August 2, 2005
New York Attorney General Elliott Spitzer's recent enforcement action against adware vendor Intermix Media has opened up a new front in the battle against this type of software.
Though Intermix claims to have settled the matter for $7.5 million, any disposition leaves open a number of issues regarding Spitzer's ultimate plan for a possible sweep against the entire adware industry. In particular, Spitzer has repeatedly threatened advertisers who run ads with adware vendors. These threats have created a conundrum for advertisers. On one hand, adware offers advertisers a cost-effective way to reach consumers who derive value from the advertisements. On the other hand, no advertiser wants to get on Spitzer's hit list. Thus, if Spitzer's threat is real, many advertisers will simply forgo adware advertising. But amid the commotion, a critical, substantive question remains ignored: What legal doctrine holds advertisers liable for advertising via adware? We have yet to hear a coherent theory from Spitzer--or anyone else--explaining how this liability arises. In fact, advertiser liability for adware vendors' actions would represent a novel and unprecedented application of current law. In other words, to hold advertisers liable, Spitzer will need to create new law (more...)
The Chapell View
Eric Goldman makes some fantastic legal points. As we all know, the internet is held to a much higher standard than just about any other medium. And as a result, it's difficult to draw too many analogies from the offline world. But newspapers, for example, have much greater accountability to the public than adware vendors currently do. If I think that the NY Times is a "pinko commie rag," then I know who to call in order to unsubscribe. Throught it's brief history, Adware vendors have not been subject to the same level of accountability. While I often take issue with consumers who don't make the slightest effort to understand what they are downloading onto their desktops, I recognize that a good deal of Adware has been downloaded without providing meaninful notice and consent to the end user.
Now - does that mean that the advertiser should be held somewhat accountable? Absolutely. However, I don't think it's fair or reasonable that Mr. Spitzer stretch the boundaries of law in order to do so. And I also don't think it's fair or reasonable for privacy advocates to be calling advertisers and making veiled threats...
However, Advertisers SHOULD be held somewhat accountable. Any brand manager who doesn't fully understand where his/her advertising messsages are appearing is not doing their job. There's a reason that (most) top-tier advertisers are no longer working with bottom feeder quality email list rental and co-registration partners. Doing so devalues their brand. Similarly, any smart advertiser should take steps to understand whether or not Adware is a viable option for their business. And they should endevor to understand the major Adware vendors, and make a reasoned business decision regarding which one(s) might be best for their business.
If there were a system to ensure advertiser accountability, the bad activity would dry up pretty quickly. And that's why Mr. Spitzer (and more recently, the FTC) is waving his sabre. The only trouble is that he's on shaky legal ground at best. So the plan for now seems to be just to scare the hell out of everyone in hopes that fear will be enough of a reason for advertisers to hold themselves more accountable for their own advertising strategy.
New York Attorney General Elliott Spitzer's recent enforcement action against adware vendor Intermix Media has opened up a new front in the battle against this type of software.
Though Intermix claims to have settled the matter for $7.5 million, any disposition leaves open a number of issues regarding Spitzer's ultimate plan for a possible sweep against the entire adware industry. In particular, Spitzer has repeatedly threatened advertisers who run ads with adware vendors. These threats have created a conundrum for advertisers. On one hand, adware offers advertisers a cost-effective way to reach consumers who derive value from the advertisements. On the other hand, no advertiser wants to get on Spitzer's hit list. Thus, if Spitzer's threat is real, many advertisers will simply forgo adware advertising. But amid the commotion, a critical, substantive question remains ignored: What legal doctrine holds advertisers liable for advertising via adware? We have yet to hear a coherent theory from Spitzer--or anyone else--explaining how this liability arises. In fact, advertiser liability for adware vendors' actions would represent a novel and unprecedented application of current law. In other words, to hold advertisers liable, Spitzer will need to create new law (more...)
The Chapell View
Eric Goldman makes some fantastic legal points. As we all know, the internet is held to a much higher standard than just about any other medium. And as a result, it's difficult to draw too many analogies from the offline world. But newspapers, for example, have much greater accountability to the public than adware vendors currently do. If I think that the NY Times is a "pinko commie rag," then I know who to call in order to unsubscribe. Throught it's brief history, Adware vendors have not been subject to the same level of accountability. While I often take issue with consumers who don't make the slightest effort to understand what they are downloading onto their desktops, I recognize that a good deal of Adware has been downloaded without providing meaninful notice and consent to the end user.
Now - does that mean that the advertiser should be held somewhat accountable? Absolutely. However, I don't think it's fair or reasonable that Mr. Spitzer stretch the boundaries of law in order to do so. And I also don't think it's fair or reasonable for privacy advocates to be calling advertisers and making veiled threats...
However, Advertisers SHOULD be held somewhat accountable. Any brand manager who doesn't fully understand where his/her advertising messsages are appearing is not doing their job. There's a reason that (most) top-tier advertisers are no longer working with bottom feeder quality email list rental and co-registration partners. Doing so devalues their brand. Similarly, any smart advertiser should take steps to understand whether or not Adware is a viable option for their business. And they should endevor to understand the major Adware vendors, and make a reasoned business decision regarding which one(s) might be best for their business.
If there were a system to ensure advertiser accountability, the bad activity would dry up pretty quickly. And that's why Mr. Spitzer (and more recently, the FTC) is waving his sabre. The only trouble is that he's on shaky legal ground at best. So the plan for now seems to be just to scare the hell out of everyone in hopes that fear will be enough of a reason for advertisers to hold themselves more accountable for their own advertising strategy.
