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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) | >
> | <-- 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 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. | | | 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. 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. | >
> | 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 sufficient 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 has not happened on its own. 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. | | | 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. |
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