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< | Human Freedom & Internet Society: A Materialist Meta-Critique | >
> | FTC Guidelines on Native Advertising: Not good enough | | | -- ShayBanerjee - 17 October 2015
Introduction | |
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< | The Internet is not a closed system, so we should not ignore the set of material forces that generate human-machine interactions in the first place. Take this essay. I, the Writer, sit in a four-bedroom apartment in Hell’s Kitchen, Manhattan on October 17, 2015, typing on my 2014 MacBook Air. You, the Reader, are likely somewhere else, on a different machine, and in a different time. Yet here we are, engaged in a mutual venture, one that is hopefully enlightening, amusing, voluntary, and undisturbed by outsiders. | >
> | In a satisfying and long-overdue victory for Net citizens located in the U.S., the FTC recently issued guidelines addressing “native advertisements” (“N-A’s”) – a deceptive practice utilized by advertisers to trick consumers by presenting advertisements under the guise of “journalism.” Those who have made a living on manipulating consumers are, unsurprisingly, outraged by the guidelines. Mark Howard, a senior executive at Forbes, grumbles that the guidelines “limit the…creativity and innovation” of advertisers and publishers.[1]. Howard’s criticism is laughable. Concocting new ways to mislead consumers is not “innovation,” but inefficiency repugnant to the functioning of a market economy. | | | | |
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< | If all the above is true, my writing this essay and your reading it is what we call "freedom." Breathe it in. Kick back and enjoy it. But I must ask: how did we get here? At one time and place, this essay was yet unwritten. At another, you were alive but had not started reading. At still another, another person on Earth never had the chance. The difference between those coordinates and the “here and now” depends on factors unrelated to the mediums on which we have chosen to read and write. If we truly love freedom, we must examine those factors and fully comprehend their significance. | >
> | On the contrary, the major shortcoming of the FTC guidelines is that they are insufficient to confront the dangers of N-A’s. N-A’s are a revolting tactic that citizens should despise and governments should prohibit outright. Here the FTC has applied principles from an age of print media to a digital environment, and thereby grossly underestimated the disruptive nature of N-A’s to American society. | | | | |
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This takes too many words to say too little. By now, the reader should know what the central idea of the essay is, and she does not. Substantively, whatever defitnion of freedom is in use is very thin indeed.
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> | Native Advertising | | | | |
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< | On Subsistence | >
> | N-A’s encompass “advertising and promotional messages that match the design, style, and behavior of the digital media in which it is disseminated.”[2]. Figure 1 displays an recent example of an N-A on Forbes. The boxes on either side are advertisements for SAP. The “article” in the middle is also an advertisement for SAP, though no one would blame you for not noticing. The “article” is an N-A, and a recent study showed that as many as 88% of people cannot tell that it is an advertisement.[3]. N-A’s were used as an advertising tactic by 73% of online publishers in 2013.[4]. According to Adam Ostrow, Chief Strategy Officer at Mashable, N-A’s possess a click-through rate 8 to 15 times higher than traditional display advertisements.[5] While Ostrow sees this as an optimistic sign of “consumer engagement” with brands, research suggests that consumers simply do not realize they are looking at advertisements. If they did, one can imagine they would prefer to avoid them. | | | | |
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< | I struggled with this essay. After spending the first half of the day brainstorming with little to show for it, I realized I had not eaten in 14 hours. Thus, I took our dog Dexter for a walk, making a stop at a Chipotle on Ninth Avenue. Since the weather was nice, I ate outside, sharing a portion of my burrito bowl with Dexter. Needless to say, when I got home with a belly full of food and a smiling face covered in dog slobber, the words started flowing from the keyboard. | >
> |  Figure 1 | | | | |
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< | I do not know where you are right now, but I can make some educated guesses. You most likely have a roof above your head, ready access to food and water, and little fear of immediate bodily harm. You are probably in a developed country, reside in a neighborhood with relatively little criminal activity, and possess a stable source of economic security. Perhaps the weather outside is pleasant over there, and maybe you, like me, help care for a companion that brings joy and comfort into your life. | >
> | Publishers view N-A’s as the savior of a media industry that has struggled to generate reliable revenue streams in the Internet society. In truth, however, a media that stands in the way of a fully informed citizenry is not worth saving. N-A’s fall neatly into a long line of destructive advertising tactics that exploit consumers, degrade public trust in journalism, and cheapen the media’s vital role as democratic society’s “organ of truth, [following] no caucuses but its own convictions” – that inviolable standard once set by Joseph Pulitzer. Put simply, readers must be able to decipher whose interests editorial content is serving, and corporations are not at liberty to piggyback on the public trust that reputable journalists past and present have earned from readers. | | | | |
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< | At the date of this writing, most people do not have what you and I have. For the majority of humanity who live in poverty, this sort of freedom is unimaginable. The really existing material conditions surrounding the poor are producing permanent damage to their cognitive development; are placing them at risk of alcoholism, drug abuse, and delinquency; and are directly causing depression, anxiety, and illness. If we want them to enjoy the same kind of freedom you and I possess during this shared moment together, we must provide for their material wellbeing. Expecting them to read, write, and learn without doing so is repugnant to the very concept of human liberty. | | | | |
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> | The Guidelines | | | | |
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I'm not sure why. Societies incapable of securing everyone a material competence have nonetheless been able to provide universal education, of which the material results are always good. Why this is repugnant to human liberty it would be useful to explain carefully.
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> | Protecting the wall between advertising and editorial content has long been a matter of public concern. In 1905, the American Medical Association published an expose on patent medicine companies and newspapers, who were crafting advertising contracts that were voidable if the newspaper published any content detrimental to the company’s interests, a disturbing revelation that helped lead to the creation of the FDA.[6]. In 2013, Congress enacted the FTC Act, Section 5 of which prohibits “unfair or deceptive acts or practices in or affecting commerce.”[7]. Since then, the Supreme Court has repeatedly held that the First Amendment does not protect deceptive advertising tactics.[8]. For years, the FTC has utilized Section 5 to prohibit misleading advertising across a variety of formats. In a particularly cited case, the FTC successfully invoked Section 5 against a bookseller who deceptively formatted a direct-mail ad to resemble a personalized, handwritten message, which simply read, “Try this. It works! - J.” | | | | |
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> | Given this history, it is no surprise that last month the FTC released its Enforcement Policy Statement on Deceptively Formatted Advertisements. The Statement was issued pursuant to Section 5 and targets the proliferation of N-A online. Holding that “an ad is deceptive if it…is not readily identifiable to consumers as an ad,” the Statement requires advertisers to disclose information that clearly and prominently identifies N-A’s as advertisements. To make this determination, the FTC will decide, as it has done in print media, whether the “net impression” of the N-A is permissible, examining factors that include the N-A’s appearance, similarity to non-advertising content, distinguishing qualities, and the language used to disclose the advertisement. | | | | |
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< | On Alienation & Use Value | >
> | The Path Forward | | | | |
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< | Throughout this writing, I resisted offers to go out drinking or play football at the park. As a law student, I am lucky enough to have free time on the weekends, but Monday through Friday I am busy with classwork. Socializing with my friends is an important component of my freedom, and having to choose between spending my limited free time with them or on personal projects like this one is often difficult. If I work at a corporate law firm in two years, billing 1800-2500 hours annually, the choices will only become harder. | >
> | Although a positive step toward protecting consumers from manipulation, the FTC Statement also reeks of a federal agency that has not fully come to terms with the nature of digital media. An N-A is not akin to a newspaper ad – it exists in a space where content migrates rapidly. Within hours of the article referenced in Figure 1 being posted, it showed up on dozens if not hundreds of other sites and news aggregators – many of which are outside the reach of FTC regulation. These sites rarely differentiate between native advertising and organic content; they will simply describe the article as originating from Forbes. Thus, even if we assume that slapping the phrase “Sponsored by X” on top of an N-A is sufficient to inform consumers about the nature of the source – and, again, the research shows that it is not – it is nonetheless an insufficient solution for consumer protection in the Internet age. | | | | |
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< | If you are like most people in the developed world, you are an employee of someone else, you find much of your job mundane and repetitive, and your work imperfectly aligns with your individual interests. You nonetheless stay at your job for fear that you will otherwise fall into poverty or out of favor with friends and family. In the process, you lose time to spend on activities you find more personally fulfilling - such as reading this essay.
For freedom to mean anything, people must actually have the time to experience it. This is problematic because industrial economies deprive humans of the ability to fully determine how they spend their time. The resultant activities are also not socially optimal: arguably far more labor time today is dedicated to mobile app development than solving global hunger, for example. Absent structural change in employment relations and the utilization of labor, the pursuit of freedom in the Internet Society is necessarily constrained.
The prevailing view,
also reflected in some essays submitted here, is that human beings
in industrial economies have far more leisure time available to them
than could ever be developed in subsistence economies. The evidence
on this point is strong enough that you should at least confront it.
On Software & Freedom
You are likely reading this essay without passing through a pay-wall, worrying that a stranger is tracking your behavior on a remote server, or wondering if a corporation or government manipulated the content. Free software is an important component of this essay’s status as an expression of freedom, and I do not intend to fully diminish that reality.
Even if the piece had been written using some proprietary services, your "without worrying or wondering" could still be true, particularly because the users of such services rarely wonder or worry. And so?
My contention instead is that dedicating social force to free software development is not an optimal use of the limited resources and time available for advocacy. As an example, I consider the once-hyped “One Laptop Per Child” program to be a proven failure and a waste.
That's odd. It seems to me to have been obviously a resounding success: it put all the world's manufacturers onto building post-Windows ultra-light notebooks, which had an immense and valuable effect on technology everywhere. Sugar, it's user interface, is available everywhere as free software to run on all sorts of hardware, and is widely used. Perhaps the criteria of success and failure should be defined.
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> | The simple reality is that both the fluid nature of digital environments and the particular manner in which consumers digest information online render N-A’s a wholly unacceptable practice under Section 5. If corporations want to raise awareness about their brand, they should do so through the traditional display mechanisms that consumers know are advertisements or on their branded websites and social media pages. True, many consumers will rationally choose to avoid viewing these advertising forms – but that is their right as free citizens. Brands are not entitled to our attention or patronage – it is their burden to earn it. | | | | |
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[1] Sydney Ember, F.T.C. Guidelines on Native Ads Aim to Prevent Deception, N.Y. Times (Dec. 22, 2015), http://www.nytimes.com/2015/12/23/business/media/ftc-issues-guidelines-for-native-ads.html?_r=2. | | | | |
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< | Simply handing poor children a free software machine does not improve learning outcomes, precisely because it does not alter their surrounding material circumstance. | >
> | [2] FTC, Comm'n Enforcement Policy Statement on Deceptively Formatted Advertisements (Dec. 22, 2015), available at https://www.ftc.gov/public-statements/2015/12/commission-enforcement-policy-statement-deceptively-formatted. | | | | |
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< | I'm not sure what
your evidence is for this statement. I have seen both lots of
data and have acquired lots of personal experience showing
precisely the opposite. I'm not sure how to explain to the kids
at AC3 in Bangalore, for example, that computers didn't change
their lives because after they began learning, they and their
families were still very poor. I don't think that's how they see
the matter, any more than it is how I do. Given that what you say
doesn't accord with experience or what I think I know, is it too
much to ask for some data, of any kind, to back up this otherwise
completely unsupported and counter-intuitive assertion?
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> | [3] Joe Lazauskas, Study: Article or Ad? When it Comes to Native, No One Knows (Sep. 8, 2015), https://contently.com/strategist/2015/09/08/article-or-ad-when-it-comes-to-native-no-one-knows/. | | | | |
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< | On the other hand, I expressed my views here despite using a computer lacking RYF certification. I visited Facebook multiple times over the last several hours, perhaps costing me a few minutes of productivity and giving Mr. Zuckerberg fresh log files, but not substantially impeding the creation of this writing. Had I chosen to publish on a proprietary system instead of a TWiki, you the Reader may have sacrificed some privacy, but still could have gained access to this essay with a few dollars or a baseline tolerance for advertisements. | >
> | [4] Ginny Marvin, 73% of Online Publishers Offer Native Advertising, Just 10% Still Sitting On the Sidelines (July 22, 2013), http://marketingland.com/73-of-online-publishers-offer-native-advertising-just-10-still-sitting-on-the-sidelines-emarketer-52506. | | | | |
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< | If we are to fight for this, we need to ask the right questions. What is the real difference between this essay and everything in our lives that is not freedom? Is it really the software, or is it something else? | >
> | [5] Transcript of FTC Workshop on Native Advertising (Dec. 4, 2013) at 75, available at https://www.ftc.gov/news-events/events-calendar/2013/12/blurred-lines-advertising-or-content-ftc-workshop-native. | | | | |
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> | [6] Id. | | | | |
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I don't know what makes it the right question, but if it is the right question, how about beginning the essay with it, and helping the reader to understand the effort you then go on to make to answer it?
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> | [7] 15 U.S.C.A. §45(a)(1). | | | | |
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> | [8] See Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 (1976). | | | | |
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> | [9] Georgetown Publ'g House Ltd. P'ship, 122 F.T.C. 392, 393-96 (1996) (consent order). | | |
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