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Anarchic Consumer Protection | |
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< | <-- Advertisements are now so numerous that they are very negligently perused, and it is therefore become necessary to gain attention by magnificence of promises, and by eloquences sometimes sublime and sometimes pathetic. Promise, large promise, is the soul of advertising.
— SAMUEL JOHNSON, “The art of advertising exemplified,” THE WORKS OF SAMUEL JOHNSON 394 (Alexander Y. Blake 1846) (1759) --> | >
> | The geometry of the net allows every person to be connected to and communicate with everyone else. This public discourse, however, has been polluted by the inevitable participation of commercial organizations, which conduct stealth marketing campaigns to misinform and deceive the public. While one might turn to Congress to solve this ongoing problem, in the digital medium it is the users themselves that will provide the most viable solution. | | | | |
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< | The change in geometry that the net produced allowed users to load videos, and for others to view, to share, and to respond to them both in comments and with other videos. This public discourse, however, has been polluted by the inevitable participation of commercial organizations, which conduct stealth marketing campaigns to misinform and deceive the public. | >
> | These campaigns are nothing new: in traditional media advertisers bribe institutions and scheme to mislead the public. Now, however, users are less likely to anticipate the corruption and, therefore, are more likely to be deceived. There have been several of these marketing campaigns, and they have been quite successful: one doubled the sales of its sponsoring company. This result makes sense given that pull media is more effective than push media, and that these provocative videos tap into the anarchic distribution system that works so well for non-functional zero-marginal cost goods. | | | | |
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< | Obviously, these campaigns are nothing new. Even in traditional media, advertisers bribe media institutions and scheme to mislead the public. The difference between that corruption and this new perversion is that users are less likely to anticipate the corruption and, therefore, are more likely to accept the deception. | >
> | These campaigns, however, raise three interrelated problems. First, as these videos become more subtle, those viewing them will grow to believe them more and more. Second, while one might argue that such proliferation will lead to users becoming more skeptical, this mass-skepticism is itself harmful to public discourse. Finally, some have argued that the net will educate the masses in a way they never have been before, but when companies wage disinformation campaigns on those uneducated users, the users are unlikely to differentiate between puffery and truth. | | | | |
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< | Over the last year, we have seen several such marketing campaigns, including Levi’s Jeans, Ray-Ban Sunglasses, and the movie Wanted. There was also a Nike campaign for sneakers, but unlike the others, it was fairly obvious that these videos were advertisements because the shoe was prominently displayed out of context at the video’s beginning and/or end. | >
> | The stealth marketers respond to these concerns by arguing that they are not saying anything false or misleading about their products, and that the consumers should be able to draw their own conclusions about the motivations of those depicted. However, as long as the videos remain deceptive as to the source of their representations users will not have the opportunity to treat representations made by company employees differently and with more scrutiny than those that are not. | | | | |
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< | One promotion depicted different groups popping popcorn by setting several cell phones next to the kernels. The campaign, paid for by Cardo Wireless, was an attempt to market their cell phone headsets. While the company claims that the videos weren’t designed to scare people into believing cell phones were frying their brains and therefore they should use headsets, it is rather unlikely that Cardo didn’t realize the effect its videos would have on an unsuspecting user.
These marketing campaigns are fairly effective—since the inception of the Cardo campaign, their sales increased 100%—which makes sense given that pull media is more effective than push media, and that these provocative videos tap into the anarchic distribution system that works so well for non-functional zero-marginal cost goods.
So what’s the problem?
First, there is the understandable concern that people believe what they see. This is less of a concern with this particular video, because if cell phones could pop popcorn, they would also make your brain explode, which they don’t. However, this type of marketing is likely to become more subtle over time and raise far graver concerns. On the other hand, one could argue that as these videos proliferate, users will become more skeptical of the videos they see. However, as I later describe, such mass-skepticism is itself harmful to the discourse.
A second concern is that if the Internet is supposed to educate the masses in a way that they never have been before, having companies wage disinformation campaigns on the world is particularly troubling. In spite of this, these companies argue that as long as they are not saying anything false or misleading about their products, the consumers should be able to draw their own conclusions about the motivations of those depicted. However, the videos remain deceptive as to the source of their representations, and users would treat representations made by company employees differently and with more scrutiny than those that were not.
One solution would be to turn to the law, but current laws are ill-equipped. While the FTC Act prohibits false or deceptive advertising, it defines false advertising as those that are misleading in a material respect. FTC Act § 55(a). Therefore, advertisements that are not misleading and merely allow the audience to make inferences are not violations. Ellen Goodman provides a nice example: | >
> | In solving this problem, one might turn to existing laws, but doing so we find they are ill-equipped. While the FTC Act prohibits false or deceptive advertising, it defines false advertising as those that are misleading in a material respect. FTC Act § 55(a). Therefore, advertisements that are not misleading and merely allow the audience to make inferences are not violations. Ellen Goodman provides a nice example: | | | As time was running out on the day's shooting, the director reportedly screamed at the crew, "'[G]o get my fucking Diet Dr. Pepper moment and get out of here."' According to the producer, "contestants [were] saying on mike--'I hate Dr. Pepper.' . . . I told them to just hold it in their hand. But then we were told we had to make sure they drank it too."
Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83, 109-110 (2006). If the product placement is subtle enough, it will leave a false impression, but will not materially misrepresent any fact. Goodman also points out that stealth marketing is not meant to defraud, but rather to “bypass audience resistance to promotional messages by giving an erroneous impression of source.” | |
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< | Instead of using current laws, Congress could pass a new law that requires advertisers to disclose the source of their videos. Such a law would have the benefit of disclosure, and if the penalties were high enough, could act as a deterrence. Although some might argue that such a law would run up against the first amendment, the law I propose could mirror the requirements of §311 of the Bipartisan Campaign Reform Act: "a statement that identifies the [sponsoring company] and states that the [company] has approved the communication." It wouldn't even have to be verbal: "writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds," will be perfectly sufficient to give the public notice. Since political speech is closer to the heart of the first amendment, any claim that the proposed advertising law violated the first amendment would also need to invalidate the "stand by your ad" provisions, which have not yet been held unconstitutional. Furthermore, there is a difference in kind between a law requiring more information to be communicated (information that is purely factual and serves a substantial purpose) and one that attempts to stifle advertisers' free expression, and unlike political speech where anonymity is a virtue, there is no legitimate reason to advertise in secret. | >
> | Instead of using current laws, Congress could pass a new law that requires advertisers to disclose the source of their videos. Such a law would have the benefit of disclosure, and if the penalties were high enough, could act as a deterrent. Such a law could mirror § 311 of the Bipartisan Campaign Reform Act by requiring "a statement that identifies the [sponsoring company] and states that the [company] has approved the communication." The disclosure wouldn’t even have to be verbal: "writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds" would be sufficient to give notice of the potential deceit. Since political speech is closer to the heart of the first amendment, any claim that the proposed advertising law violated the first amendment would also need to invalidate the "stand by your ad" provisions, which have not yet been held unconstitutional. Furthermore, there is a difference in kind between a law requiring more information to be communicated (information that is purely factual and serves a substantial purpose) and one that attempts to stifle advertisers' free expression, and unlike political speech where anonymity is a virtue, there is no legitimate reason to advertise in secret. | | | Then again, stealth marketing is, well, stealthy. It may be difficult for regulators to tell the difference between a video created for fun and one created by advertisers. Additionally, only a limited number of minds would be able to work on the problem (likely one guy in a state attorney general’s office). Finally, given that none of the companies that pay for Congress’s political campaigns would be interested in a law inhibiting their marketing, it is unlikely that there would be sufficient political will to pass such a law. | |
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< | Alternatively, consumers could be protected by anarchic truth distribution. During the popcorn campaign, people expressed skepticism from the beginning, and the community immediately began speculating that the video was a fake. Simultaneously, users around the world recreated the video to debunk it and posted their content on the same distribution networks where the original video was displayed. Exposing the video anarchically had several benefits: like the initial distribution it could be done at zero marginal cost and in the same medium, and it allowed many minds to work together on the problem. Conversely, relying on other users leaves detection of these campaigns to the level of doubt the campaigns engender in their viewers after the video is initially distributed. This is troubling because for maximum protection, users would need to be skeptical of everything they observe in every medium, which would itself damage public discourse. Additionally, once the truth is discovered, promoters are rewarded with a second distribution by those posting that it was a fake. However, given the lack of political will to punish advertisers and the companies that hire them, anarchic truth distribution is likely the best approach available. | >
> | Because these laws are unlikely to successfully protect consumers, the consumers themselves will need to anarchically distribute the truth about the stealth marketing. During one of these campaigns, people expressed skepticism from the beginning, and the community immediately began speculating that the video was a fake. Simultaneously, users around the world recreated the video to debunk it and posted their content on the same distribution networks where the original video was displayed. Exposing the video anarchically had several benefits: like the initial distribution it could be done at zero marginal cost and in the same medium, and it allowed many minds to work together on the problem. Conversely, relying on other users leaves detection of these campaigns to the level of doubt the campaigns engender in their viewers after the video is initially distributed. This is troubling because for maximum protection, users would need to be skeptical of everything they observe in every medium, which would itself damage public discourse. Additionally, once the truth is discovered, promoters are rewarded with a second distribution by those posting that it was a fake. However, given the lack of political will to punish advertisers and the companies that hire them, anarchic truth distribution is likely the best approach available. | | | Further Reading |
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