Mary M. Luriaa
The Computer Lawyer, Vol. 14, No. 11; Pg. 10, November, 1997
A combination of forces is descending on the Web to control its intrusions on proprietary rights of private parties and consumer privacy. Various trade groups have proposed standards and voluntary guidelines to rein in the free-wheeling style of the Web while still preserving its interconnected communication paths. Considering advertising in its broadest sense -- including paid advertising running alongside content, advertising in the guise of content, classified advertising with ancillary content and advertising coupled with online purchase order and fulfillment capabilities -- advertising can and does pay on the Web. Advertising can be a source of support for future growth and development of the Web.
Yet there has been an enormous outcry against at least certain kinds of Web advertising -- including in many cases advertising which would be perfectly acceptable if carried on in any other medium. The Clinton Administration may be committed to maintaining the Internet as a free and unimpeded form of "Global Electronic Commerce," but a series of recent challenges by private parties and, more recently by the Federal Trade Commission, Congress and state legislatures has begun to limit advertising practices on the Internet. Trade groups have responded with voluntary guidelines -- many of them specific to the Web.
Meanwhile, some members of Congress are attempting to protect the Internet and free it of regulation. On July 30th, Representative White introduced the Internet Protection Act of 1997,1 which would create a "free trade zone on cyberspace" and would prohibit both state and local governments from regulating the rates, charges, practices, classifications, facilities, or services on the Internet. The Act would also prohibit state and local regulation of the technical specifications for providing Internet services and would reserve such power to the federal government (which would follow with a "hands-off" approach). The bill's stated policy is that: "In order to support rapid and efficient technological and commercial innovation, deployment, and adoption of Internet information services, it shall be the policy of the United States to rely on private initiative and to avoid, to the maximum extent possible, government restriction or supervision of such services." The only exceptions are such regulations as are necessary and in the public interest in order to assure non-discriminatory charges or other practices and consumer protection.
This article will consider the delicate balance between protecting the rights of people and businesses and preserving the spirit of open communication that is the hallmark of the Web. The tension between these ideals is evident in certain problems often associated with advertising on the Web -- "spamming," "linking," "framing," and consumer privacy.
Spamming -- or 'Junk Email'
Spam, now associated with unsolicited advertising, can mean any flood of irrelevant or inappropriate messages. Historically (in e-terms, this means 1993), it is thought to have been applied to members of multiple user domains (MUDS) who in chat kept making the same point in rapid succession to dominate play -- i.e., a "spammer." In this context, it is believed to have originated with Monty Python's choral tribute to the much maligned pork product.2
The first case to associate spam with advertising, does, alas, involve those unlikeable professionals, lawyers. On April 12, 1994, two Arizona attorneys posted an advertisement to over 6,000 Internet newsgroups.3 This posting described a United States immigration status "Green Card lottery." The lawyers offered to complete the lottery forms for a mere $95 per person or $ 145 a couple (without mentioning that it was free to enter). Internet Direct, the lawyers' ISP, canceled their account after the deluge of complaints from Internet users rendered Internet Direct's systems inoperative. In response to incidents like the one caused by the Arizona lawyers, Internet service providers began adding provisions to their subscriber terms and conditions prohibiting the posting of commercial advertisements to non-commercial Usenet groups.
ISPs have also been successful in enjoining spamming by using trespass theories in litigation. Earlier this year, CompuServe obtained an injunction against Cyber Promotions, Inc., a company known for sending unsolicited email advertisements to hundreds of thousands of Internet subscribers.4 Although CompuServe is in the business of providing computer equipment to its subscribers to deliver email (characterized by the court as "a tacit invitation ... to utilize"), the massive volume of ads in this case adversely affected CompuServe's technical ability to serve its subscribers and its business relationship with them. Moreover, CompuServe had previously communicated to Cyber Promotions that it was not permitted to send unsolicited bulk emails. Accordingly, the court held that CompuServe had a viable claim for trespass to personal property and was entitled to an injunction. Both AOL5 and EarthLink Network6 have also won injunctions against Cyber Promotions and other "junk email" business on trespass theories.7 In general, ISPs have been successful in litigation against spammers using trespass theories when unsolicited email ads caused the ISP's system to crash or occupied significant amounts of disk space. Spamming that causes minor disruptions may not amount to trespass.
These cases raise interesting questions about how much is too much, who determines this and how it is communicated, and whether characterizing unsolicited email ads as trespass is the right legal answer. Is it trespass when the mailbox is stuffed with catalogs, often several from a single direct mail seller in a single day? Or when telephone solicitors call several times a day, always at inconvenient times? Why is e-mail different?
One reason (arguably) is that spam is sent "postage-due" to names gathered from other site lists (Usenet, CompuServe) at little or no cost to the sender, but at great cost to others. Recipients -- and to an even greater extent, their Internet service providers -- pay the costs of time, disk space, processor power, connect charges, network band width, customer service calls, retaliatory responses, etc. Anonymous spam or spam with forged or spoofed headers, particularly if sent through a third party system, causes the third party to suffer damage to its name and reputation. One such company, Web Systems Corp. of Houston, has sought injunctive relief against Cyber Promotions to prohibit it from using the company's host domain name for a return address.8 Cyber Promotions subsequently announced in a press release that it would no longer permit relaying through third party systems to the user, a practice it originated which caused criticism. Spam has become so unpopular that the mere threat of it can cause trouble today, as AOL found when it proposed list rentals of email addresses of its subscribers to third parties. AOL backed down, since its subscriber contract privacy provisions (to say nothing of customer relations) put subscribers in a better position to complain than would otherwise be the case. Many ISPs now ban spam on their networks.
Several industry groups have been formed to promote legislation prohibiting or regulating these practices. The first legislation to emerge has been state legislation. For example, on July 8, 1997, Nevada's governor signed into law a bill that regulates the transmission of email advertisements.9 The statute, which becomes effective July 1, 1998, provides that, if a person transmits an email message containing an advertisement (or causes such a message to be transmitted), the sender may be liable for civil damages unless:
* The sender has a pre-existing business or personal relationship with the recipient;
* The recipient has expressly consented to receive the message; or
* The advertisement is readily and easily identifiable as an advertisement and includes the sender's legal name and address, and informs the recipient of how to remove himself or herself from the sender's mailing list.
The statute provides for injunctive relief and damages of up to $ 10 per email message plus attorney's fees and costs. There is a specific exemption from liability for Internet service providers merely transmitting messages on behalf of network users (unless the ISP created the advertisements). The law contains no specific requirement that senders honor requests to remove names from mailing lists.
Recent cases suggest that state legislative attempts to regulate the Internet may be struck down, however. In ACLU v. Miller,10 a Georgia statute made it a crime for any person knowingly to transmit data through a computer network using a false name. The statute also made it illegal for any person knowingly to transmit any data through any computer network if the data uses a trade name, registered trademark, logo, seal or copyrighted symbol in such a manner as to falsely state or imply that permission was obtained from the owner. The court held that the statute was overbroad and an invalid content -- based restriction on First Amendment protected expression (albeit anonymous or pseudonymous).
In American Library Association v. Pataki,11 a district court struck down a New York statute that made it a felony to knowingly make available via "computer communication system" certain material harmful to minors (even if it was impossible to know whether there are any minors in the audience). The court held that this violated the Commerce Clause, saying one state cannot unduly burden Internet content because of the Internet's multi-jurisdictional reach:
"The unique nature of the Internet highlights the likelihood that a single actor might be subject to haphazard, uncoordinated, and even outright inconsistent regulation by states that the actor never intended to reach and possibly was unaware were being accessed. Typically, states' jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet. The menace of inconsistent state regulation invites analysis under the Commerce Clause of the Constitution, because that clause represented the framers' reaction to overreaching by the individual states that might jeopardize the growth of the nation -- and in particular, the national infrastructure of communications and trade -- as a whole." 12
At the federal level, there are currently three bills directed at unsolicited emails pending in Congress. The Netizens Protection Act of 1997 13 was proposed by Chris Smith (R-NJ) in the U.S. House of Representatives. This legislation aims to expand the current junk fax law14 to cover junk email by prohibiting the sending of email to someone unless the sender and the receiver have a pre-existing business relationship or unless the recipient explicitly invites the email. The bill also requires that any email clearly indicate the date and time the message is sent, the identity of the business or entity sending the message, and a valid return address for the message originator. This legislation would still allow for advertising on the Internet, but if done by email, recipients would have to "opt-in" and agree to bear the problems and costs associated with receiving the email.
Senator Frank Murkowski (R-AK) is the sponsor of the "Unsolicited Commercial Electronic Mail Act of 1997."15 The bill requires the word "advertisement" in the beginning of the subject line and the name, addresses (street and email) and telephone number of the sender prominently in the body of the message. The bill also requires that every Internet service provider set up filters that will allow users to request that a service provider block any unsolicited email. (Many ISPs already do this, as a service to users.) There is a broad group who can sue for violations, ranging from state attorneys general to the FTC to private persons adversely affected; damages can be awarded up to $ 5,000 per violation, plus costs and attorney's fees. Finally, Senator Robert Torricelli (D-NJ) has introduced the Electronic Mailbox Protection Act,16 prohibiting anonymous spam and forged headers and requiring opt-out procedures for consumers who wish to be deleted from spam lists.
These legislative initiatives have run into criticism ranging from First Amendment issues to ISP compliance costs, to the obvious practical issue that the Internet is without borders and cannot reach off-shore spammers. Many feel that the only real answer to spam is the technical one enabling the user to block it -- a technology not yet available.
Linking -- or Hyperlinks or Hot Links
Linking facilitates access to a third party Web site by permitting the user to click on a location on the sponsor's own Web site; the user is then automatically connected to the third party Web site without need to input any location information or consult any directory, index, or search engine. Basically, a link is an embedded electronic address that points to another location and takes the user there. The electronic address is stored and, upon click, sends the address to the browser which moves the user to the Web site with that address. As such, like user activated electronic book marks, it is one of the great facilitators permitting the user to navigate the Internet without the usual aggravation and delay which have led to the nickname "World Wide Waste of Time."
The legal issue confronting courts today is whether a Web site sponsor may implement such a link unilaterally and without an agreement from the owner of the third party Web site. A link may be regarded as nothing more or less than a footnote or bibliographic reference pointing the user to related materials of interest while also transporting the user there. Another way to look at it is form of free rider misappropriation of property or unfair competition. The originating Web site benefits, particularly if it has advertisers or is a single sponsor commercial site, but it may do so at the expense of the linked Web site. The branding and paid third party advertisements of the linked Web site may not be seen by the user or, if they do appear, may conflict with the advertisements of the originating site.
A Scottish newspaper filed suit this past summer against its former editor for "breach of copyright and parasitism."17 The ex-editor had developed a Web site with headlines and links to the Scottish newspaper, but by-passing its front page. The parties are currently awaiting a decision on the case from the Scottish court. Under U.S. copyright law, it is doubtful that the challenger would be successful, since headlines alone have little expressive content, although compilations of headlines may be protectible.
On April 28, 1997, Ticketmaster sued Microsoft over unauthorized links from Microsoft's "Seattle Sidewalk" Web page to pages deep within the Ticketmaster site (by-passing Ticketmaster's home and advertising pages).18 The complaint alleges causes of action under the Lanham Act and California state law. The case is complicated by the fact that a mutually agreed-upon link was under negotiation and these negotiations failed just before Microsoft acted unilaterally to establish the link. The link was removed after the suit was filed alleging dilution of Ticketmaster's trademarks and diversion of advertising revenues. Microsoft then posted a statement protesting Ticketmaster's position as "against the very nature of the Web" and likely to have "serious implications for the future of the Internet."
Ticketmaster alleges that it is a generally recognized trade practice that "absent an agreement with the owner for use of a Web site, Web sites are for personal noncommercial use." Therefore, Ticketmaster asserts, any commercial purpose link (i.e., originating from a site with advertising) requires the express permission of the linked site owner which can, of course, be refused. There are several similar cases pending, including one challenging links to a site with a celebrity name and image (James Dean) for commercial purposes.19
It is, however, the general view of the industry that no permission is required for linking of any kind, since linking is consistent with the very purpose of the Internet -- open communication. While linking agreements are also common, they are usually intended to deal with other aspects of the relationship, such as preferential access, the content of the linked site, and shared revenues, for example.
If the link itself uses copyrighted material belonging to the owner of the linked site, the use of the link (involving multiple electronic copies) could be a copy-right infringement. In the U.S., this would require more than the mere use of headlines. In such a case the link would have to take the form of a design or character (e.g., Dilbert) or a slogan expressive enough to qualify for copyright. If the link involves prominent use of the trademark and/or logos of the owner of the linked site, arguments can be made that this is trademark infringement and/or dilution, as well as unfair competition. Text-only links can be defended as a fair use -- nothing more than an indication of how to find more information about the linked site and its owner at its own home page.20
The American Bar Association's Cyberspace Subcommittee has suggested
a form of linking agreement while conceding that requiring permission is
inconsistent with the nature of the Internet.21
Certainly such agreements are prudent if not always practically attainable.
When used, they can obtain other benefits (e.g., warranties, indemnities
and other allocations of risks and responsibilities as to content). They
are obviously the norm with cross links, where both parties are similarly
motivated to link to each other and are sharing revenue from advertising
or product sales on the linked sites. They are considerably more difficult
to obtain if there is no benefit to the linked site or if there is some
possible detriment. Under these circumstances, links should be confined
to minimum text only (URL or domain name) and should link through the main
page or index, not directly to a high value location deep within the site
even if this is possible. It has even been suggested that a disclaimer
be added as to the relationship between sites when there is no linking
agreement, but this seems like overkill. On the other hand, since disclaimers
may well be desirable as to the content of linked sites, it is easy to
disclaim any relationship at the same time.
Framing -- or Content Windows
Sometimes called in-line links, framing technology points to content elsewhere on the Web on a third party's Web site and "pulls" the content into the screen of the Web site to which the user is connected -- whether the content is a "clip" of text, audio or video. Far more interesting to analyze than unauthorized hyperlinks, unauthorized framing creates more issues by the technology which permits the Web site owner to enable users, while remaining at the first Web site, to view all or part of the Web sites of third parties -- usually "framed" or surrounded with advertising of the first Web site, often cutting off content and/or advertising of the framed Web site. The site identifier on screen will also be that of the first Web site, rather than the framed one, so this sponsor will be associated with the content of the other.
On February 20, 1997, a number of newspapers and periodicals filed suit in the Southern District of New York against Total News, Inc., challenging this practice.22 Total News is characterized in the suit as a parasite Web site with little or no substantive content, but with considerable on-screen advertising of itself and the products and services of its advertisers. The user sees a menu consisting of third-party trademarks (Fox News, MSNBC), the Total News trademark and URL, and some content from the framed site.23 The site apparently also contains an advertisement from the Total News advertiser, AT&T, with the opportunity to "click here" and get more advertising content from the AT&T Web site or other Total News Web pages. The complaint alleges misappropriation, trademark dilution and infringement, "willful copyright violation" and other tortious acts such as false advertising. In a single sentence, the plaintiffs challenge the Total News practice: "Defendants have designed a parasite Web site that republishes the news and editorial content of others' Web sites in order to attract both advertisers and users." It has even been suggested that the plaintiffs might have a cause of action for tortious interference with contracts between the plaintiffs and their advertisers.
When the Washington Post posts its materials on the Web, it gives an implicit license to browse (how else can it be seen?). The trouble with implicit licenses is that their terms are unknown. Can the user only browse at the Washington Post Web site or through the Total News frame? Can the Post tell you where to read the newspaper after you have it delivered or get it at the local newsstand?
Technology may overtake law before we known the answer about framing. The Total News case has been settled on the basis that hyperlinks may continue to be used, but only text links (no logos), and framing will cease; as a result, there will be no decision for some time on this important issue.24 An addendum to the settlement listed over 150 sites that may not be framed by the defendants and the defendants agreed not to 'directly or indirectly cause" the plaintiffs' content to appear on the same screen with any material associated with the defendants, whether by text, graphics, pop-up window, or audio or video.
It is already clear that framing can be prevented by technical means and some site owners have implemented this technology. It is somewhat harder to prevent linking altogether -- to say nothing of whether any site owner would want to do this. It is also possible to technologically prevent a link from by-passing the title, index page or other authorized entry points; however, it is implausible that any site owner will want to force all users (not just those entering the site through links) to navigate particular paths once within the site and see all ads.
In sum, any link to another site that does not make use of characters,
logos or third party trademarks fits with the purpose of the Internet,
which is networking. Even with framing, where the boundaries of the frame
are clear and the site owner's other content and advertising is clearly
separate, it is harder to argue that this is a violation of the site owner's
Controlling Advertisements, Linking and Framing with Click Agreements
With more frequency, Web sites are appearing with click contracts at sign-on that purport to make it a condition of accessing the site that other sites (or atleast sites with ads) not link or frame without permission. ISPs also are posting rules prohibiting use of their facilities for unsolicited ads. This type of restrictive practice will inevitably become more common as the debate over Web advertisement, linking and framing continues.
Web click contracts may well be enforceable and the law is moving in the direction of clarifying enforceability. Under Pro CD, Inc. v. Zeidenberg,25 if the contract terms are visible or available at the point of sale and the user can avoid paying for the product or get a refund if the terms are unacceptable, the contract (shrink wrap or, in this case, "Web wrap" or click) will be enforceable. In a free Web access situation, if the terms are on-screen or can be accessed and the user's manifestation of consent is obtained via a "click here" routine, an enforceable contract to access and navigate the site probably results on the stated terms unless they are "unconscionable."
Many of these contracts or warning notices are unclear and difficult for even the law abiding user to comply with, however. What does it mean to copy only "limited excerpts"? Others are so restrictive that they have already been violated by the act of signing on -- since this creates the electronic copy which is prohibited by the terms the user is then reading on his or her screen. Such terms will be difficult to enforce.
The Web click routines in general use today and the language of the Web click contracts create a new set of issues. Web site sponsors want to bury the contract language and make it easy for the impatient user to bypass the contract terms. Some Web site sponsors "hide" the contracts by requiring the user to click "Legal" (always a favorite spot for the average Web surfer) or "Lawyer xxx wants a word with you." The problem is obvious: enforceability of the contracts may depend on their prominence to the user. Hidden notices fail their two essential purposes, warning in order to prevent infringement and enforcing against those users not deterred from the prohibited activities.
Burying contract language deep within a Web site may be acceptable if
the site sponsor is careful to post in a more prominent location (near
sign-on) a user option that elicits a click on the selection "I am aware
of the terms and I accept them." It is best to supplement this with the
warning: "These are the only terms and conditions on which we are willing
to permit access and use of this Web site; any user not willing to accept
these terms should exit the site immediately."
Consumer Privacy Issues -- The New Hot Button
The Federal Trade Commission (FTC) has begun to focus on consumer privacy issues raised by the new online marketplace, and held another public workshop the week of June 10, 1997. The FTC used the workshop as a means of gathering objective data on four different topics:
* Consumer databases containing identifying information about consumers; * Consumers' online privacy;
* Unsolicited commercial email; and
* Children's online privacy.
Only two potential areas emerged from the workshop as possible candidates for regulation in the near future. The first involves so-called "cookie" technology, which allows a Web site other than the one that a user has logged into to collect information about that user. Cookie technology is now a default so that a cookie is automatically accepted by the user's browser. However, the Internet Engineering Task Force, an international group of software engineers who promote the development of Internet standards, has taken up a proposal to change the default setting with respect to cookies so as to direct the browser not to accept a third party cookie. The proposal next will be considered by the World Wide Web Consortium, an industry group that oversees the development of software standards used on the Web. Commissioner Varney suggested that how the proposal fares before the Consortium will affect FTC action on the cookie issue.
Secondly, workshop attendees voiced a particularly high degree of concern about the use of children's information gathered on the Internet. Several representatives from the Center of Media Education (CME) argued that in the area of marketing directed at kids, self-regulation and technological solutions would not suffice. Without government intervention now "we run the risk of an out-of-control market developing," according to CME president Kathryn Montgomery. Others stressed how susceptible children are to certain marketing techniques being used online, particularly the practice of using cartoon characters to solicit information or direct children to buy certain products. The CME also presented a survey demonstrating the degree to which online marketing is directed to children.
Based on these concerns and survey evidence presented by the CME, a representative from the Consumer Federation of America proposed some guidelines for consideration by the FTC. These include the following:
* Marketers should be prohibited from using characters to solicit information from children;
* Marketers should not be permitted to send unsolicited email to children;
* Marketers should not be allowed to solicit from children information about family members or other individuals; and
* Promotions that include free giveaways should be proscribed to the extent they are directed toward children.
On July 15, 1997, in a letter from Jodie Bernstein of the FTC's Bureau of Consumer Protection to the Center for Media Education (responding to CME's petition that the FTC take action against Kids.com operated by SpectraCom, Inc.), the FTC stated:
"It is deceptive practice to represent that a Web site is collecting personally identifiable information from a child for a particular purpose (e.g., to earn points to redeem a premium), when the information will also be used for another purpose which parents would find material, in the absence of a clear and prominent disclosure to that effect."
Moreover, in order to be effective, any disclosure regarding collection and use of children's personally identifiable information must be made to a parent, given the limited ability of many children within the target audience to comprehend such information. An adequate notice to parents should disclose who is collecting the personally identifiable information, what information is being collected, its intended use(s), to whom and in what form it will be disclosed to third parties, and the means by which parents may prevent the retention, use or disclosure of the information.
A bill has been introduced by Rep. Edward Markey (D-Ma.), called the Communications Privacy and Consumer Empowerment Act,26 that would require notification to consumers about online information gathering. The bill would also allow consumers to verify the accuracy of information and opt out of further disclosure. In addition, the bill would require ISPs to provide customer screening software to eliminate material inappropriate for children.
There are a number of self-regulation initiatives being proposed also, most prominently by the Direct Marketing Association (DMA) and the Council of Better Business Bureaus (BBB). Even the self-regulators look forward to the emerging new technologies which may leave the resolution in the hands of the parents as far as kids are concerned, however.
Over a year ago the DMA announced its position. According to the DMA's Marketing Online Privacy Principles and guidance, "all marketers operating online sites, whether or not they collect personal information online from individuals, should make available their information practices to consumers in a prominent place." The DMA guidelines further mandate that "marketers sharing personal information that is collected online should furnish individuals with an opportunity to prohibit the disclosure of such information." DMA is moving in the direction of making many of these guidelines mandatory as a condition of membership and has sought (and obtained) an FTC advisory opinion that this trade association requirement does not violate the antitrust laws.
The Council of Better Business Bureau's Children's Advertising Review Unit27 guidelines are for advertising directed at children under 12. While there are general guidelines covering ads by type without regard to media, one portion is directed toward "Interactive Electronic Media (e.g., Internet and Online Services") described as 'an interim approach to a new and unfamiliar marketing venue." It should be kept in mind that the guidelines apply to all linked sites of which the owner of a site is aware. Sales ads require that the child be told he or she is targeted for a sale, include clear ordering instructions requiring parental approval and a clear mechanism for order cancellation by the parent or child. Data collection requires telling the child to seek parental permission; a clear statement of intended use; disclosure of passive information gathering devices in use like tracking; suggestions that the child user's site registration be in a screen name rather than a real name if the name will be public; and a clear statement that providing information is optional (if not required to engage in site activities); collection of e-mail address information from children should be by secure means and if the advertiser follows up with the child by email, each email communication should permit the child or parent to opt out by return email.
Privacy is an area in which we can expect further regulation in the
near term. It is prudent to give both adults and children the right to
"opt-out" when gathering information for any purposes other than use of
the Web site. On the other hand, it is important to keep in mind from the
constraining to live with over time. A more general policy may give the
ISP or Web site sponsor greater flexibility until the law in this area
is clearer, as are the Web community's generally accepted rules of behavior.
Liability for Online Advertising
The rules for false advertising which apply to other media will apply to Web ads as well. There are really only a few things which may be special about the Web. First, the speed and breadth of the Web are unique, though the difference is unlikely to be significant. Second, the worldwide nature of the Web creates special problems. Will the laws of all countries worldwide apply just because Web content is available worldwide (and it is difficult to impossible to make content unavailable in particular countries)?
Finally, will the Web site and the various intermediaries like ISPs which "carry" the ads be held responsible for its contents? ISPs are increasingly likely not to be held responsible for content, or at least not until they are told about it; the sensible ISP will then delete the ad unless the creditworthy advertiser agrees to a full indemnity. The Web site carrying ads of unaffiliated parties will probably be treated like the ISP; moreover, the sensible Web site sponsor will have an agreement with the advertiser or its agency acting on behalf of the advertiser under which the Web site is indemnified for content-related claims. Single sponsor sites and/or their agencies will be responsible for the entire contents of their Web sites as self-contained ad supplements or informercials; others (hosts, ISPs) involved in making the site available on the Web will probably not be held responsible -- at least not without notice and an opportunity to delete.
The FTC is still considering what aspects of Web ads are different and
should be regulated in a different manner. As FTC Commissioner Roscoe B.
Starek III stated in Australia on June 7, 1995:
Another difference between traditional advertising and advertising on the Internet is that the technology bringing the advertising to consumers may blur the lines between what is, and what is not, an advertisement. For example, online entertainment may in fact be an advertisement or may contain advertisements. This blurred line may be analogous to television informercials, or program length commercials, which are in fact advertisements but may appear to be investigative news or interview programs.28
Online technology can also compress the advertising and the selling phase of consumer transactions. For instance it is now feasible for consumers to view an ad for a product and immediately purchase the product. While the instantaneous nature of the transaction provides a convenience to consumers, it also makes it easier for fraudulent sellers to succeed because consumers have less time to consider their choices.
For now, it is reasonably safe to assume that Web based advertising will be subject to the same rules, as to false or deceptive content as well as general compliance with local laws and regulations, as any other form of advertising. The FTC is chasing online scams of a classic nature, but is wary of breaking new ground as urged by CME and other children's protective interest groups.
(a) Mary M. Luria is a partner in the Advertising and New Media Group at Davis & Gilbert, New York, N.Y.
(1) "Internet Protection Act of 1997," H.R. 2372, 105th Cong. @ 2 (1997).
(2) New Hacker's Dictionary, http://www.eps.mcgill.ca/steeve//tnhd.html. In a skit from the British television show "Monty Python's Flying Circus," the term "spam" apparently is repeated to the point of absurdity in a restaurant menu. See CompuServe v. Cyber Promotions, Inc., 902 F.Supp. 1015, 1018 (S.D. Ohio 1997).
(3) Gatland, "Internet Advertising Lawyer Disbarred," 83 Oct. ABA J. 37 (1997).
(4) Compuserve v. Cyber Promotions, Inc., 962 F.Supp. 1015 (1997).
(5) Cyber Promotions, Inc. v. America Online, Inc., 948 F.Supp. 456 (1996).
(6) G. Johnson, "On the Information Highway, Email Litter Problem Grows," New York Times,
May 26, 1997, Sec. 1, p. 1.
(7) Cyber Promotions won one round against another ISP which tried to shut it off without the
contractually required notice. Cyber Promotions, Inc. v. Apex Global Information Services, 1997
U.S. Dist. LEXIS 15344 (Sep. 30, 1997).
(8) Media Daily, June 10, 1997, Sec. 5, Vol. 4.
(9) Nevada State Senate Bill No. 13, 1997 NV S.B. 13.
(10) ACLU v. Miller, 1997 U.S. Dist. LEXIS 1446 (N. D. GA. June 20, 1997).
(11) American Library Association v. Pataki, 969 F. Supp. 160 (1997)
(13) "Netizens Protection Act of 1997," H.R. 1748, 105th Cong. @ 2 (1997).
(14) 47 USC @ 227.
(15) "Unsolicited Commercial Electronic Mail Choice Act of 1997," S771, 105th Cong. (1997)
(16) "Electronic Mailbox Protection Act of 1997," S875, 105th Cong. (1997)
(17) Internet Litigation News, September 1997, 1340.
(18) Multimedia & Web Strategist, May 1997, Vol. 3, No. 7, p. 8.
(19) See W. Cook, "Have You Been Framed?" Chicago Lawyer, May 1997, p. 70.
(20) It is noteworthy that the settlement of the Total News case, discussed below, permits the
continuance of text only links, while prohibiting other activities such as banner links with plaintiff's
logos or other distinctive images.
(21) R. Neuwirth, Institute for Public Affairs, In These Times, Oct. 20, 1997, Vol. 21, p. 18.
(22) "Publishers Settle Dispute Over Framing with Web site Owner," Intellectual Property
Litigation Reporter, July 2, 1997, p. 11.
(24) See Id.
(25) ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)
(26) "Communications Privacy and Consumer Empowerment Act," H.R. 1964, 105th Cong.
(27) BBB's CARU http://www.bbb.org/advertising/97caru.html
(28) Rosco B. Starek III, Commissioner, U.S. Federal Trade Commission "Consumer Protection
in the Age of Borderless Markets and the Information Revolution," before the conference on
Transborder Consumer Regulation and Enforcement University House Balmain Crescent,
Australian National University Canberra, Australia, June 7, 1995.