Deceptive Advertising in Search Results

[Alan Perkins]

I'm looking for a means to respond to Danny's blog (http://blog.searchenginewatch.com/blog/050322-072005) on my article Search Marketing Techniques, Deceptive Advertising Laws & Other Laws (http://www.silverdisc.co.uk/articles/sm-law/). I hope it's appropriate to do so here.

Background: the article was the third and final article following the "Black Hat, White Hat and Lots of Grey" session in Chicago (where both Danny & I were on stage), and raises issues I had hoped would be covered during that session - but weren't. :)

He cites the FTC action over a pagejacking scam in 1999 as one extreme example of deception being found in a legal instance. I agree with that (and my own write-up of that case is here, FTC Steps In To Stop Spamming).My reason for citing that case was to show that publishers, not only search engines, could be held responsible for what appears in search results.
Alan does make clear that search spam itself is not necessarily the same as deception from a legal perspective. But he does conclude specifically that cloaking content with the intent of getting a better ranking is deceptive advertising:So, those search engine spamming techniques that involve delivering the same content to searchers and search engines, such as hidden text or single pixel transparent links, do not constitute deceptive advertising. However, those techniques that involve delivering different content to searchers and search engines constitute deceptive advertising if the intent and result of the technique is a preferable placement.I completely disagree. First, I don't know that getting organic listings in a search engine would be considered "advertising" under US laws, much less those of other countries.No, I don't believe that organic results are advertisements. That is why I think that if you did manage to slip an advertisement into them, it would be deceptive.In addition, if what was promised in the search listing is generally the same as what someone gets when they arrive at the page, it's hard to argue consumer deception.The article examined the CommercialAlert complaint to the FTC regarding deceptive advertisements in search results. Those deceptive advertisments promised "generally the same as someone gets when they arrive at the page". Nevertheless, they were considered deceptive. I'm surprised that the blog didn't comment on the CommercialAlert case as this was the key one concerning deceptive advertising.
But the search engine itself was deceived! Maybe, but that doesn't mean laws about deceptive advertising were violated.The point of the article was to test that idea.And search engines get deceived about things all the time, including when they naturally fail to index pages properly or assign them a better ranking because the page themselves are not necessarily search engine friendly.Agreed, and I'm not saying that all deception is deceptive advertising or that mistakes are deceptive advertising. I am suggesting that if a publisher detects a search engine and delivers content to that search engine that is designed to achieve a higher placement or prominence than the content delivered to searchers would achieve, then that's not an accident!In fact, that's one reason that Google itself allows approved cloaking, as I've written before. Without allowing this, it can't properly index some content.

It's also why I find the entire argument over cloaking to be so tiresome to the point I may no longer even comment on articles about it in the future. Cloaking is not necessarily spam or misleading, as I wrote to great depth in my Ending The Debate Over Cloaking article of Feb. 2003.I took great care in the article to be clear that not all people mean the same thing by cloaking, and that some people would call other non-deceptive techniques cloaking too.If cloaking alone (independent of WHAT is being cloaked) were spam and misleading, then Google wouldn't allow it all all, in any circumstances, nor would Yahoo and others that accept XML feeds allow that form of cloaking. Cloaking is simply a method of feeding content to a search engine. How that content is described to a consumer and what ultimately is delivered when they arrive at a page after reading a listing is where you determine deception.Danny has previously made a distinction between "approved" cloaking and "unapproved" cloaking. In the CommercialAlert case, the FTC found that "approved" cloaking can lead to deceptive advertisements appearing in search results. My argument is simply that "unapproved" cloaking can lead to the same thing.

The organic search results are not advertisements, but it is possible for deceptive advertisements to be placed into them. My argument is it makes no difference to the searcher if you pay a search engine or deceive a search engine in order to place a deceptive advertisements - the searcher (who laws on deceptive advertisements are designed to protect) is still being deceived.

Did you promise "kids internet games" as with the 1999 pagejacking case and instead deliver up porn? That's deceptive, regardless of whether you cloaked, meta refreshed or whatever. Did you promise games and actually deliver them? Then how you gained the listing isn't likely deceptive from a legal point of view. The CommercialAlert case showed that it can be deceptive from a legal point of view. Customers of paid inclusion and paid placement were delivering content to searchers that was relevant to their searches. The issue wasn't whether it was relevant, but whether its placement and prominence were determined by objective criteria.

Deception in getting the ranking will remain the sole jurisdiction of the search engine itself (and more about that in my past Spam Rules Require Effective Spam Police article)The search engine can't police this if it is being deceived. One way for the search engine to defeat the deception would be to use proxy IP addresses, spoof a user agent and ignore robots.txt. Is this what we (webmasters as a whole) want search engines to do in order to police deception? Or would that be equivalent to a corrupt police force who use fight crime with crime?Later, I'll be writing about new page-specific markup that Yahoo is proposing that were raised at the Indexing Summit we held at SES New York (for some fast details, see our Indexing Summit - SES NYC 05 forum thread with live coverage of that). This markup would allow portions of a page seen by humans to be ignored by spiders -- effectively, a form a cloaking.Effectively, a form of meta data, and clearly not deceptive. :) There's a big difference between what a search engine knows humans won't see, and what a search engine thinks humans will see. There are good reasons for doing it, but if the change comes, it's going to once again move forward the definition of cloaking. More important, it's going to further move forward the fact that search engines are no longer (and haven't for some time) only comparing pages to each other that have been spidered exactly as seen by humans. They aren't, nor should they, and nor would doing so somehow restore some type of "level playing field" that never existed in the first place.Agreed! :)

[dannysullivan]

Perfectly fine to start a thread on this, Alan -- exactly what we encourage people to do if they see something on the blog they want to discuss, and glad you did.

As for not commenting on Commercial Alert, the FTC didn't say that the ads on search engines were deceptive. They weren't promising something that wasn't delivered. Instead, what the FTC worried was deceptive was the fact that some people might not realize the ads were in fact ads. They wanted the fact to be made clear.

I am suggesting that if a publisher detects a search engine and delivers content to that search engine that is designed to achieve a higher placement or prominence than the content delivered to searchers would achieve, then that's not an accident!
No, it's not. And Google is allowing publishers like NPR and scholarly places to do exactly this, detect that Google is spidering them and deliver content that even Google acknowledges is designed to achieve better visibility in Google. It's done with Google's knowledge and approval, of course. But that goes to the bigger point I was trying to make.

It's no longer a case that showing a spider something different than what a user sees means that you are tampering with the level playing field. Nor has it been for some time, because XML feeds show spiders things that are not the same as humans see. So I disagree with the idea that just the act of feeding custom content to a spider is deceptive in that it tampers with relevancy. Instead, I think it's more about what exactly is being fed.

[Alan Perkins]

As for not commenting on Commercial Alert, the FTC didn't say that the ads on search engines were deceptive. They weren't promising something that wasn't delivered. Instead, what the FTC worried was deceptive was the fact that some people might not realize the ads were in fact ads.Yes, that's exactly my concern. By default, organic search results are not ads. The CommercialAlert case showed that it's possible collude with a search engine to place ads there. It's also possible to deceive a search engine to place ads there.

Suppose a given URL ranks at postion #5 for a given keyword. The publisher creates some new content designed to rank higher for the same keyword. Three separate scenarios:

1) The publisher publishes that content at the URL for all to see
2) The publisher pays the search engine to accept the content in a "trusted feed" or "approved cloaking" relationship
3) The publisher uses "unapproved cloaking" to deliver the new content to the search engine, but keeps delivering the old content to searchers.

Suppose in each scenario the given URL rises to #2 for the given keyword (all other things remaining unchanged, such as the algo and other content on the Web).

Scenario 1 is, IMO, accpetable. Organic listings with a position determined by objective relevance. Not advertising.

Scenario 2 is advertising of a sort, and must be labelled as such. The CommercialAlert case established that.

The question is, what is Scenario 3? I contend that it's closer to Scenario 2, it just happens to use "unapproved" cloaking rather than "approved" cloaking. The alternative is that it's not OK to pay a search engine for a listing, but it is OK to deceive a search engine to achieve the exact same listing. Given that laws on deceptive advertising are designed to protect consumers, and consumers are equally susceptible to deception in both cases (arguably, more so when the search engine is deceived), I don't see how deception of a search engine to achieve a higher prominence or placement can be OK if payment of the search engine isn't.

No, it's not. And Google is allowing publishers like NPR and scholarly places to do exactly this, detect that Google is spidering them and deliver content that even Google acknowledges is designed to achieve better visibility in Google. It's done with Google's knowledge and approval, of course. But that goes to the bigger point I was trying to make.I actually think Google is wrong to allow NPR to do what it does. Google Scholar is different because those results are segregated from the organic search results and their inclusion criteria is different.

It's no longer a case that showing a spider something different than what a user sees means that you are tampering with the level playing field. Nor has it been for some time, because XML feeds show spiders things that are not the same as humans see. So I disagree with the idea that just the act of feeding custom content to a spider is deceptive in that it tampers with relevancy. Instead, I think it's more about what exactly is being fed.Agreed. In fact I filed a patent (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm&r=1&f=G&l=50&s1=6,253,198.WKU.&OS=PN/6,253,198&RS=PN/6,253,198) in 1999 that talks about using XML to feed content to search engines! :D But it's also about:

1) whether the search engine knows that searchers won't see the content
2) the level of disclosure to searchers

[dannysullivan]

Scenario 2 is advertising of a sort, and must be labelled as such. The CommercialAlert case established that....

I don't see how deception of a search engine to achieve a higher prominence or placement can be OK if payment of the search engine isn't.
The FTC did not require that paid inclusion listings be labeled, as long as ranking boosts don't happen. They only asked search engines to alter searchers to the general practice that paid inclusion happens in general. So in scenario 2, labelling is not required -- nor does it happen. If it did, you could search at Yahoo and know exactly what listings are paid inclusion. You can't -- though I've written (http://searchenginewatch.com/searchday/article.php/3369651) before that I think they should go beyond the FTC guidelines and do this.

So that hurts the situation in scenario 3. If paid inclusion isn't required to be labelled, there certainly isn't a requirement for other type of custom-delivered content to be so either.

I actually think Google is wrong to allow NPR to do what it does. Google Scholar is different because those results are segregated from the organic search results and their inclusion criteria is different.
Google Scholar results are organic results. You mean they're segregated from the web search results, correct? In either case, I don't think Google's wrong in doing things. They just need to change the guidelines to say that in some cases, they'll allow cloaking if they think it helps relevancy. And I think it can in some cases, it can be good for the searcher if Google spiders password protected content to fully understand what it's about, for example.

[PhilC]

We were directed here from another thread that was started about the "legalities" artricle. Here's what I posted in that thread:-

Are there any other methods for the placement of deceptive advertisements in search results? Suppose that, instead of paying the search engine as in the above case, a search marketer deceived the search engine to achieve the exact same result - an unmerited placement (according to, as the FTC put it, "relevancy, or other objective criteria") of its listings in search results. Would this be deceptive advertising?I got as far as that bit when I realised that it's just another rant based on personal biases, and without any foundation in reality. So I stopped reading the article, but not before a quick skim suggested to me that he [Alan Perkins] was trying to make the point that deceiving the engines is deceptive advertising and, therefore, illegal.

Load of rubbish!

Organic search engine results are not advertisements. I think that just about covers it.

In case there is any disagreement (and I'm sure there is), I'll address the opposite position - that search engine results *are* advertisements...

Deceiving the advertising medium (the engines) is not deceptive advertising. Deceiving the readers would be deceptive advertising, but that's all. It means that getting a higher ranking for an on-topic page, by methods that deceive the engines, has nothing to do with deceptive advertising - however much the author [Alan Perkins] wishes it has.

[Alan Perkins]

The FTC did not require that paid inclusion listings be labeled, as long as ranking boosts don't happen.Likewise, unapproved cloaking does not need to be labelled, as long as ranking boosts don't happen. But when ranking boosts do happen, how is that to be labelled?

They only asked search engines to alter searchers to the general practice that paid inclusion happens in general. So in scenario 2, labelling is not required -- nor does it happen.It does happen. At Yahoo, for example, every page includes an "About this page (http://help.yahoo.com/help/us/ysearch/basics/basics-03.html)" link:Web Results:
Web Results are the most relevant web pages found in response to your search query. Web Results are generated from the billions of web pages discovered, crawled, reviewed, submitted, or otherwise included in the Yahoo! Search index. More than 99% of web pages in the Yahoo! Search index are included for free through Yahoo!'s web crawl process.

Web Results may also include links to sites that participate in the Content Acquisition Program (CAP). CAP enables content providers to submit web content directly to Yahoo! for review and inclusion in the Yahoo! Search index; content providers that participate in CAP through the Site Match ("http://www.content.overture.com/d/USm/ays/sm.jhtml) program pay for these services. Participation in CAP or Site Match does not guarantee placement or ranking in search results but additional information made available through the direct data feeds may increase or decrease relevance depending on the search query.That "increase or decrease relevance" means "increase or decrease position in the search results".If it did, you could search at Yahoo and know exactly what listings are paid inclusion.Yahoo's disclosure doesn't go that far, but they do disclose paid inclusion (i.e approved cloaking) and the effect it may have on their search results. They don't disclose unapproved cloaking and the effect that may have on their search results. You can't -- though I've written (http://searchenginewatch.com/searchday/article.php/3369651) before that I think they should go beyond the FTC guidelines and do this.I agree. That would make the situation even clearer when it comes to distinguishing approved cloaking from unapproved cloaking, because if unapproved cloaking could be labelled, there wouldn't be a problem with deceptive advertising. :)

So that hurts the situation in scenario 3. If paid inclusion isn't required to be labelled, there certainly isn't a requirement for other type of custom-delivered content to be so either.Paid inclusion is required to be labelled. Here is a quote from the FTC Letter to Search Engines (http://www.ftc.gov/os/closings/staff/commercialalertattatch.htm):The Federal Trade Commission responded to a complaint filed by Commercial Alert requesting that the agency investigate whether certain search engines are violating Section 5 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 45(a)(1),(1) by failing to disclose that advertisements are inserted into search engine results lists.
...
The FTC's Bureau of Consumer Protection staff reviewed the search engines listed in the Commercial Alert complaint and others. For the most part, the staff believes that while many search engine companies do attempt some disclosure of paid placement, their current disclosures may not be sufficiently clear. The staff also believes that, depending on the nature of the paid inclusion program, there should be clearer disclosure of the use of paid inclusion, including more conspicuous descriptions of paid inclusion itself.(2) As a general matter, clear and conspicuous disclosures would put consumers in a position to better determine the importance of these practices in their choice of search engines to use.Beyond that, unapproved cloaking is designed to improve placement in search results, so paid placement becomes analagous. By way of example, here is a spam e-mail some clients received within the past year:
Subject: Urgent: Opportunity to cut your PPC expenditure

Please forward this email to the Marketing Director or the person who is responsible for your pay-per-click expenditure.

Dear Sir/ Madam,

A successful online marketing campaign is all about Return on Investment.

Our records indicate that you are currently bidding on a pay per click listing on the keyword '[removed]'.

If you answer YES to any of the following questions, I would highly recommend that you contact me.

-Are your potential customers searching for your products or services online?

-Are you spending large amounts of money on pay per click?

-Would you like to reduce your online marketing budget?

-Are you interested in improving you ROI?

Our [product name] product offers you solutions to all of the usual pay-per-click concerns.

-The [product name] pay per click solution is tailored specifically for Google.

-All search terms can be secured at 50% of the cost that the FOURTH bidder is currently bidding in Overture.

-You can choose the page your visitor will land on.

-There is no bidding required.

-[product name] pay per click cost stays the same for at least 3 months.

-We will ensure to get you ranking within 2 weeks.

-Click through rate will be higher on the left (natural results) because Adwords only capture about 2.5% of the traffic.

-The deposit to open a [product name] account is only £200.00.

-You will be sent a notice whenever you need to top up the account.

-You have your own online access area to manage the campaign.

At [product name] we ensure that your click-throughs are double qualified for half the cost! To get more specific information about the great ppc prices we can offer for your selected keywords, please give me a call on [snip] and I will take you through the whole process. Alternatively, simply reply to this email providing your contact details and I will call you back ASAP.

Best regards,

etc.I understand if you need to cut that quote (although the company that sent the e-mail is no longer in business), but can you deny that resultant listings would be advertisements? It's selling PPC listings in Google organic results, using cloaked content and a redirect for searchers.

Google Scholar results are organic results. You mean they're segregated from the web search results, correct?Yep. :)
In either case, I don't think Google's wrong in doing things. They just need to change the guidelines to say that in some cases, they'll allow cloaking if they think it helps relevancy.The way Google defines cloaking, I don't think they'll be changing those guidelines anytime soon. :)And I think it can in some cases, it can be good for the searcher if Google spiders password protected content to fully understand what it's about, for example.So do I. I'm all for search engines having a full understanding. But in order to fully understand what's going on, Google has to also know it's password protected. :)

[Alan Perkins]

Organic search engine results are not advertisements. I think that just about covers it.

In case there is any disagreement (and I'm sure there is), I'll address the opposite position - that search engine results *are* advertisements...The position as I understand it is that organic search engine results are not advertisements, but that it is possible to deceptively advertise within them.

It's the fact that they are not supposed to be advertisements that makes the ads they do contain deceptive.

[PhilC]

I agree with that statement for things like including ads (PPC) in the results without indicating that they are ads. That's deception by any engine that does it, and it's what that case was about. But it doesn't matter what methods are used to get higher rankings, the serps are not advertisements, as you've just said, so "deceptive advertising" doesn't come into it.

It is certainly possible to get high rankings where the surfer is taken to something completely off-topic. That's deception of both the surfer and the engine, but it isn't advertising.

[Alan Perkins]

I agree with that statement for things like including ads (PPC) in the results without indicating that they are ads.OK, so what about PPC ads like those in the letter I quoted above? These are run not by the engine but by a cloaker who already has (or hopes to quickly gain) positions for keywords, and is prepared to sell a redirect to a third party.

But it doesn't matter what methods are used to get higher rankings, the serps are not advertisements, as you've just said, so "deceptive advertising" doesn't come into it.The SERPs are not supposed to be advertisements and are not understood by searchers to be advertisements. That's precisely why any advertisement placed in them is deceptive.

It is certainly possible to get high rankings where the surfer is taken to something completely off-topic. That's deception of both the surfer and the engine, but it isn't advertising.Agreed.

[PhilC]

The nature of the organic serps is not advertising. If someone wants to sell by clicks, which is not unusual in seo, it doesn't make any difference. The method is still the same - get top rankings to get traffic. I see no fundamental difference between getting top rankings for a fixed fee, getting top rankings for a fixed fee plus a small amount per generated visitor, and getting top rankings for a small amount per visitor. The only difference is the way that the service is charged for. The activity is the same - getting top organic rankings.

I cannot see anything in that letter that could be interpreted as advertising.

[dannysullivan]

It does happen. At Yahoo, for example, every page includes an "About this page" link
The FTC guidelines asked that paid placement be labelled and segregated from other results. The FTC guidelines did not require paid inclusion listings to be labelled or segregated from organic results. they did not require that the paid inclusion listings be called out from other listings in any way, shape or form. They only required that if paid inclusion was active, this fact be made aware to users. Yahoo does exactly this. That is far different from actually labelling paid inclusion results. The average person has no idea whether someone is paid inclusion at Yahoo or not. Even experienced search marketers have great difficulty determining this.

OK, so what about PPC ads like those in the letter I quoted above? These are run not by the engine but by a cloaker who already has (or hopes to quickly gain) positions for keywords, and is prepared to sell a redirect to a third party.
To me, an ad on a search engine is something the search engine sells itself.

Yes, people will try to buy organic listings and hope they get the same guarantee they'll get with ads. But the only thing that can be guaranteed is some type of settlement if a high ranking isn't maintained. Unlike an ad, no one can be assured of keeping a listing in getting traffic from a search engine.

Having said this, sure, you can argue that the third party company is essentially selling advertisements to people who want placement. So how do the FTC guidelines apply to those? We don't know. Since the media owner itself is not receiving payment, I think the FTC still wouldn't view these ad ads in terms of disclosure, especially given the lack of guarantees. It becomes more akin to PR.

In terms of deception, the FTC has already said that it will act is consumers are being mislead off organic results. Your argument then is that the FTC might consider deception to be that the search engine was shown something the human didn't see, something that helped the page rank better than "it should."

Honestly, I doubt they'd go in there. But you can test it -- just file a complaint. Since they have enough difficulty grappling with paid inclusion, the idea they'll wade in to a thicket that the search engines themselves don't necessarily find deceptive would be nothing short of astounding. That's especially so given that it is literally impossible to say where a page "should" actually belong, especially when you have search engines like Google at this very moment showing pages that can move into different positions.

[Alan Perkins]

If someone wants to sell by clicks, which is not unusual in seo, it doesn't make any difference. The method is still the same - get top rankings to get traffic. I see no fundamental difference between getting top rankings for a fixed fee, getting top rankings for a fixed fee plus a small amount per generated visitor, and getting top rankings for a small amount per visitor. The only difference is the way that the service is charged for. The activity is the same - getting top organic rankings.Agreed.I cannot see anything in that letter that could be interpreted as advertising. :eek: OK, that's yoor opinion. I disagree.To me, an ad on a search engine is something the search engine sells itself.You mean, if the publisher pays the search engine to provide a higher placement or prominence, then that's an ad (and if it isn't labelled as such it's deceptive to searchers). But if the publisher pays a third party to achieve exactly the same placement or prominence, for exactly the same content seen by searchers, then that isn't an ad and it's not deceptive to searchers?

If so, we'll have to agree to disagree on that. In terms of deception, the FTC has already said that it will act is consumers are being mislead off organic results. Your argument then is that the FTC might consider deception to be that the search engine was shown something the human didn't see, something that helped the page rank better than "it should."Yep. :)Honestly, I doubt they'd go in there.I have no idea. That's almost a different question. :)But you can test it -- just file a complaint.I have no interest in doing that. My main concern with appearing on your panel and with the subsequent articles was to highlight the differences (as I saw them) between certain techniques in terms of hat colour, ethics and legality. That's done now. :)

BTW, I've had to edit this post to reduce the number of smilies. What's with that? I like to make use of smilies to express my tone, as often the words themselves fail to do that. FWIW, this post is made in the best of spirits and with the best of intentions.

[MakeMeTop]

Am I being unduly dense here?

If I have a web page that says "buy widgets here" in text and it appears for the word "widgets" in the search engine at the top and someone clicks on it to go to a page that says "buy widgets here" - that is neither deceptive nor an advertisement.

However, if I have a web page that says "buy widgets here" in an image and it appears for the word "widgets" in the search engine at the top because I "cloaked" the page for a search engine to show them the text in my image as text (without using the alt tag) - and then someone clicks on it to go to a page that says "buy widgets here" - that is a both deceptive and an advertisement?

Now, the latter case may be a pretty stupid thing to do but why is one an advertisement and one not and why is one deceptive to a searcher (the crux of the FTC issue) and one not?

If the site using text actually provides a worse service and deceives people than the site using "cloaking" who are the world's leading widget vendors - it would appear to me that the search engine is deceiving people by not listing it in a primary position. Obviously, that is not going to come before a judge - but I just don't see how the "text in image" example suddenly becomes deceptive advertising.

Though I do follow Alan's gist.

The latter example is potentially breaking SE rules and may be removed - but I don't see how a consumer is being deceived at all.

[Alan Perkins]

If I have a web page that says "buy widgets here" in text and it appears for the word "widgets" in the search engine at the top and someone clicks on it to go to a page that says "buy widgets here" - that is neither deceptive nor an advertisement.Yes, it could be both. Obviously if you had bought that placement using Adwords, Overture or equivalant, then it would be an ad. And if it wasn't labelled as an ad and it appeared in a context where the viewer wasn't expecting an ad, then it would be a deceptive ad.

If you hadn't bought the placement and the content ranked where "it should" according to objective ranking criteria, then it's not an ad.

However, if I have a web page that says "buy widgets here" in an image and it appears for the word "widgets" in the search engine at the top because I "cloaked" the page for a search engine to show them the text in my image as text (without using the alt tag) - and then someone clicks on it to go to a page that says "buy widgets here" - that is a both deceptive and an advertisement?Potentially, yes. If you use deception to make the content rank higher than "it should", then you have turned your organic listing into an advertisement IMO.

Now, the latter case may be a pretty stupid thing to do but why is one an advertisement and one not and why is one deceptive to a searcher (the crux of the FTC issue) and one not?It's deceptive to a searcher because it earnt its exact placement through deception. The publisher has co-opted the trust the searcher places in the search engine to provide objective results.

If the site using text actually provides a worse service and deceives people than the site using "cloaking" who are the world's leading widget vendors - it would appear to me that the search engine is deceiving people by not listing it in a primary position. Obviously, that is not going to come before a judge - but I just don't see how the "text in image" example suddenly becomes deceptive advertising.Hopefully I've explained it. It's because it uses deception to obtain a higher placement than it deserves. Why not just use an ALT attribute? Why not provide text content for humans to read, as well as search engines?

[PhilC]

Potentially, yes. If you use deception to make the content rank higher than "it should", then you have turned your organic listing into an advertisement IMO.That's just not true. We already agreed that the method of obtaining a higher ranking isn't relevant to whether or not the organic listing is an advertisement.

Either an organic listing is an advertisement or it isn't. You agreed that it isn't. Everyone who tries to get higher rankings, does so so that its link will be clicked on by people. In a sense, it means that all SEOed higher rankings are advertisement, regardless of the seo method used. But you are not saying that. You are trying to make out that "white" methods don't result in advertisements, and that "black" methods do. That just doesn't hold water.

But even if all SEOed rankings are advertisements, then they are only deceptive avertisements if the reader is deceived by them. The method of placing the ads is irrelevant.

[Alan Perkins]

That's just not true. We already agreed that the method of obtaining a higher ranking isn't relevant to whether or not the organic listing is an advertisement.No, we never agreed that. You said it. I never agreed with it.Either an organic listing is an advertisement or it isn't. You agreed that it isn't.No, I agreed that they are not supposed to be. The whole point is that it's possible to place an ad in the organic results and, because searchers are not expecting ads to be there, those ads are deceptive.Everyone who tries to get higher rankings, does so so that its link will be clicked on by people. In a sense, it means that all SEOed higher rankings are advertisement, regardless of the seo method used.I'd argue that all SEOed higher rankings are marketing, and that most are "manipulation", but I wouldn't argue that all were deceptive or advertisements.But you are not saying that. You are trying to make out that "white" methods don't result in advertisements, and that "black" methods do. That just doesn't hold water.Nope, I'm not saying that. I'm saying that some black hat methods are deceptive and they lead to deceptive ads being placed. Other black hat methods exploit weaknesses in search engine algorithms and don't necessarily (IMO) lead to deceptive ads being placed.

But even if all SEOed rankings are advertisements, then they are only deceptive avertisements if the reader is deceived by them. The method of placing the ads is irrelevant.No, the method of placement is germaine IMO.

[PhilC]

I'm sorry, Alan, but your position doesn't make sense. There is no way to differenciate between the listings in the results. They are organic listings, and that's all they all. They lead people to other pages and that's all they do. If the landing page is off-topic, then the user was deceived. If they are on-topic, then the user wasn't deceived. How each listing got into the serps is completely irrelevant.

One way of looking at a set of totally unseoed organic serps is that they are not advertisements, because none of the page owners made any attempt to put them there. When somebody changes things about a page, with the intent of getting it a higher ranking, it is for the purpose of getting its listing in front of people's eyes, so that they may click on the listing. In a way, that is advertising. But there is no way to differentiate between the methods used to get that page a higher ranking, and in front of people's eyes. Every method is with the intent of getting the listing in front of people's eyes.

As long as the listing itself doesn't deceive people, there is no "deceptive advertising". Whether or not the engine was deceived doesn't have any bearing on whether or not the advertisement is deceptive. I'm sorry, but it doesn't. It may be a deceptive method of getting the ad up there, but the ad itself is not deceptive.

The best you can say, from your point of view, is that certain results are "deceptively acquired advertising", but that's as far as you can go.

[Alan Perkins]

I'm sorry, Alan, but your position doesn't make sense.It makes perfext sense to me, Phil, so that must be your opinion rather than a fact. :)There is no way to differenciate between the listings in the results.That's true for searchers, and precisely why it's possible to place deceptive ads in the search results.They are organic listings, and that's all they all. They lead people to other pages and that's all they do.[ If the landing page is off-topic, then the user was deceived.Agreed.If they are on-topic, then the user wasn't deceived.No, I don't agree with this. The searcher places a certain amount of trust in the search engine to deliver objectively relevant results (this was the basis of the CommercialAlert complaint).How each listing got into the serps is completely irrelevant.That's your opinion, Phil, but n my opinion the CommercialAlert case demonstrates that that is definitely not the case,One way of looking at a set of totally unseoed organic serps is that they are not advertisements, because none of the page owners made any attempt to put them there. When somebody changes things about a page, with the intent of getting it a higher ranking, it is for the purpose of getting its listing in front of people's eyes, so that they may click on the listing. In a way, that is advertising. But there is no way to differentiate between the methods used to get that page a higher ranking, and in front of people's eyesI gave a way, If the search engine's algorithm is based (at least in in part) on what the searcher sees, and the search engine sees what the searcher sees, then there is no deception. However, if you deceive a search engine into believing the search engine will see one thing, when in fact you will show the searcher something else, then the deception is clear and unequivocal. Every method is with the intent of getting the listing in front of people's eyes.True, but some methods are deceptive and others are not.

As long as the listing itself doesn't deceive people, there is no "deceptive advertising".Just look at what CommercialAlert complained would be deceptive to see the level of deception that is required. It seems that if a listing is shown one place higher than it "deserves", then it is deceptive.Whether or not the engine was deceived doesn't have any bearing on whether or not the advertisement is deceptive. I'm sorry, but it doesn't. Again, that's your opinion, and IMO it does. If the engine is deceived, then its placement of listings in SERPs becomes arbitrary and not dictated by the objective measures of relevancy that searchers expect.It may be a deceptive method of getting the ad up there, but the ad itself is not deceptive.If the ads that CommercialAlert complained about were deceptive, then equivalent listings placed by deceiving search engines, rather than colluding with them, are also deceptive.

[dannysullivan]

What Commercial Alert complained about is not the same as watch the FTC ultimately decided was an issue. But actually in both cases, I don't recall either party suggesting that the ads had somehow gotten into a place they didn't deserve. The argument was that consumers might have thought the ads were unpaid listings. In the end, the FTC didn't care if it was all ads you wanted to show or if you wanted ads to come before editorial listings. They just wanted to ensure that ads were clearly identified as ads. The idea that something was deceptive because it got a "higher" place didn't factor into it, from anything I recall.

[Alan Perkins]

But actually in both cases, I don't recall either party suggesting that the ads had somehow gotten into a place they didn't deserve.That was the entire case. If "ads" had a lower or equivalent placement than the same URL naturally warranted, there would be no problem. You can pay to be demoted or excluded from the listings without fear of legal action. :DThe argument was that consumers might have thought the ads were unpaid listings. In the end, the FTC didn't care if it was all ads you wanted to show or if you wanted ads to come before editorial listings. They just wanted to ensure that ads were clearly identified as ads.Yep, that's the issue. The question is what are ads?The idea that something was deceptive because it got a "higher" place didn't factor into it, from anything I recall.Again, that was the whole basis of the case and formed a key part of the FTC's response:Commercial Alert Files Complaint Against Search Engines for Deceptive Ads (http://www.commercialalert.org/index.php?category_id=1&subcategory_id=24&article_id=33)
Commercial Alert filed a deceptive advertising complaint today with the Federal Trade Commission against eight search engines, for placing ads in search engine results without clear disclosure that the ads are ads. The complaint states that such listings "look like information from an objective database selected by an objective algorithm. But really they are paid ads in disguise."
...
The text of the complaint follows
...
When search engine companies first unveiled their engines, they did not put ads in the search results. Results were displayed based on objective criteria of relevancy tallied by algorithms.

During the last year, however, some search engines sacrificed editorial integrity for higher profits, and began placing ads prominently in the results, but without clear disclosure of this practice. Advertisers pay the search engine companies to have their products and services listed "high" in or near the search results. Thus the listings look like information from an objective database selected by an objective algorithm. But really they are paid ads in disguise.
FTC Response to CommercialAlert (http://www.ftc.gov/os/closings/staff/commercialalertletter.htm)
This information is likely to be important to consumers,(3) who otherwise might believe that the sites placed higher up in the list were independently chosen and ranked as being more relevant to the consumer's search query than those search results placed further down in the list. The failure to disclose paid placement adequately within search results deviates from the established deception principle of clearly distinguishing editorial content from advertising content.(4) The purpose of such a demarcation is to advise consumers as to when they are being solicited, as opposed to being impartially informed.FTC Response to Search Engines (http://www.ftc.gov/os/closings/staff/commercialalertattatch.htm)
The Federal Trade Commission responded to a complaint filed by Commercial Alert requesting that the agency investigate whether certain search engines are violating Section 5 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 45(a)(1),(1) by failing to disclose that advertisements are inserted into search engine results lists.
...
The FTC's Bureau of Consumer Protection staff reviewed the search engines listed in the Commercial Alert complaint and others. For the most part, the staff believes that while many search engine companies do attempt some disclosure of paid placement, their current disclosures may not be sufficiently clear. The staff also believes that, depending on the nature of the paid inclusion program, there should be clearer disclosure of the use of paid inclusion, including more conspicuous descriptions of paid inclusion itself.(2) As a general matter, clear and conspicuous disclosures would put consumers in a position to better determine the importance of these practices in their choice of search engines to use.
...
Accordingly, the staff recommends that if your search engine uses paid placement, you make any changes to the presentation of your paid-ranking search results that would be necessary to clearly delineate them as such, whether they are segregated from, or inserted into, non-paid listings. Factors to be considered in making such a disclosure clear and conspicuous are prominence, placement, presentation (i.e., it uses terms and a format that are easy for consumers to understand, and that do not contradict other statements made), and proximity to a claim that it explains or qualifies.

[PhilC]

If they are on-topic, then the user wasn't deceived.No, I don't agree with this. The searcher places a certain amount of trust in the search engine to deliver objectively relevant results (this was the basis of the CommercialAlert complaint).So you're saying that a user can click on a listing in the serps, land on an on-topic page, and the user has been deceived if the listing got in the serps by a method that deceived the engines, such as cloaking. But the user has not been deceived if that very same page had been listed under its own steam. That, of course, doesn't make any sense, so I have to assume that it's not quite what you are saying, although it certainly sounds like it.

Alternatively, you may mean that it's the engine that has been deceived and not the user. In which case, I think that most people would agree with you, but you need to change from the phrase "deceptive advertising" to "deceptively acquired advertising".

"Deceptive advertising" means that the adverisement makes false claims or false statements, and that is patently not the case in the organic serps where the landing page is what the listing said it was.

Now, if you stick to the phrase, "deceptive advertising", which means that the ad makes false claims or statements, then you have to explain what is false about the statements/claims that are made in the listing, bearing in mind that the landing page is what was described in the listing.

Also, what you said in the quote above, about search engines delivering objectively relevant results, *must* apply to all highly ranked listings that have got there by influences outside the engines - seo.

Allow me to reply in your stead, to see if I can get where you're coming from...

You will say that, since the listing text of a cloaked page, is not the text that is on the landing page, the user has been deceived. You will also say that, since the listing text of a non-cloaked SEOed page is text that is on the landing page, the user has not been deceived.

I may be wrong about what you will say, but in case I'm right, (a) organic serps are not advertisements - you said that yourself, (b) because organic serps are not advertisements, they cannot be deceptive advertisements, (c) the user has not been deceived unless the landing page is not what was expected when clicking on the listing, and (d) you are really talking about cloaking, and you are using the "deceptive advertisement" idea as a ploy to write another article about why you think cloaking is wrong.

You said it yourself:-

True, but some methods are deceptive and others are not.It's the method that deceives. A method can only deceive the engines - not the surfers. I don't think anyone would disagree with that.

It seems that if a listing is shown one place higher than it "deserves", then it is deceptive. If that is true, and don't accept that it is, it must apply to all pages that were SEOed to get them higher rankings, regardless of the method used.

If the engine is deceived, then its placement of listings in SERPs becomes arbitrary and not dictated by the objective measures of relevancy that searchers expect. No. It's placement in the serps is exactly right because it is placed the engine's algo - just like all the other pages, whether SEOed or not. The cloaked page merits it ranking according to the objective algo.

rather than colluding with them [the engines], are also deceptive.Slightly off-topic here, but no SEO complies with the engines - none. The only people who comply with the engines are those who's activities are limited to ensuring that a site's pages can be spidered, and writing good copy so that the engines' programs can rank them accordingly. Anything more than that is outside of the engines' guidelines - Google's guidelines, anyway. Anyone who limits their activities to those things is not a SEO (search engine optimizer) - s/he is a search engine friendlyizer, and that's all.

[PhilC]

Your quotes from the case are all about paid advertisements. There is nothing about the possibility of organic listings being advertisements - nothing at all. You are trying to make a case that organic listings are, in fact, advertisements, and you asked the question:-

The question is what are ads?Nothing about that case came close to suggesting that organic listings are ads, and, judging by the postss in this thread, everybody agrees that organic listings are not advertisements, including you, Alan. If they are not advertisements, they cannot be deceptive advertisements.

[Alan Perkins]

So you're saying that a user can click on a listing in the serps, land on an on-topic page, and the user has been deceived if the listing got in the serps by a method that deceived the engines, such as cloaking. But the user has not been deceived if that very same page had been listed under its own steam. That, of course, doesn't make any sense, so I have to assume that it's not quite what you are saying, although it certainly sounds like it.That's exactly what I'm saying and it makes perfect sense to me.

Here is my position, in a nutshell:


Organic listings as a whole are not advertisements. In the context of organic listings, searchers expect to find objectively relevant results.
It is possible for some listings that appear in the context of the organic results to be advertisements. The CommercialAlert case showed that.
Advertisements that appear in the context of the organic results are deceptive if they are not labelled as advertisements, because searchers don't expect to see ads in that context. The CommercialAlert case showed that, too.
Laws on deceptive advertising are designed to protect consumers. Consumer are in this case searchers.
From the perspective of the searcher, it makes no difference if a publisher pays a search engine to give an unlabelled listing higher placement or prominence, or deceives a search engine to give the same listing higher placement or prominence. The searcher sees the same unlabelled listing with higher placement or prominence in both instances.
If one is a deceptive advertisment, then so is the other. This makes logical sense. The searcher sees the same thing in both instances, and laws on deceptive advertising are designed to protect searchers. Why would the searcher need protecting from one instance, but not the other?
The law is still to be tested on this exact issue. However, the US law has been tested on the Pereira case (publisher found liable for SERP contents) and the CommercialAlert case (deceptive ads can appear in organic search results; search engines warned to segregate paid placement and improve disclosure)

[dannysullivan]

Alan, my key disagreement with you in a nutshell is this:

* The position of a listing on a page however it happens doesn't constitute deceptive advertising.

In other words, it doesn't matter whether you got a high ranking because you paid for it, you got it naturally, you cloaked, it was manually inserted by a search engine or whatever. It's not deceptive advertising if the person reads the listing and then finds the page they click through to provides what was promised.

The search engine algorithm can be manipulated into ranking a page better, but whether that algorithm has been deceived into giving a better ranking remains ultimately up to the search engine themselves.

The FTC action was not over deceptive advertising but instead consumer confusion. Subtle but important point. The ads were not deceptive in that they delivered what was promised. The action of them seeing like unpaid results was deemed to be confusing, however.

I've read what you cited, and you fail to prove your case with me that deception in those cases is about rank versus labelling. From Commercial Alert:

Advertisers pay the search engine companies to have their products and services listed "high" in or near the search results. Thus the listings look like information from an objective database selected by an objective algorithm. But really they are paid ads in disguise.
I bolded the key part they are upset with, that the ads are disguised -- not that they are ranked highly. The complain does NOT say ads should come below other things or be removed entirely. Instead, it concludes:

We urge the FTC to fully investigate this matter and exercise any and all of its powers to enjoin the companies listed in this complaint from disseminating deceptive advertising, and to require them to disclose, in a clear and conspicuous manner, that ads placed in search engine results are, in fact, ads.

As for the FTC, same thing. It didn't say ads had to go or come after results. It only said they should be segregated and labelled. Want to put them first? Feel free.

[I, Brian]

Interesting thread, Alan, and if you don't mind my asking, have you a comparable set of articles criticising the behaviours of search engines?

It's definitely a great idea for a sense of "best practices" to be applied to any industry, but the articles referred to seem to lay the onus of responsibility of publishing SERPs on the SEO's, rather than search engines themselves.

The article highlighted also seems to go to some lengths to avoid holding billion-dollar corporations to the same candle of criticism that you are willing to hold to small businesses.

For example, if a search engine publishes keyworded PPC ads such as "Baby African for sale: best deals here (http://www.vaughns-1-pagers.com/internet/ebay-ads.htm)", then is that not the responsibility of the search engine to address such "deceptive advertising" practices?

And if a search engine produces SERPs that are irrelevant, then why are SEO's held to be accountable for this? I can't help but read this in your article. So if I perform a search on Google UK UK-only searches for internet news (http://www.google.co.uk/search?hl=en&q=internet+news&btnG=Google+Search&meta=cr%3DcountryUK%7CcountryGB) then would you be suggesting that Oxford University are deceptively advertising for having a 404 page rank top for that search phrase, rather than a bona-fide internet news site such as the Register (http://www.theregister.co.uk) or the BBC (http://news.bbc.co.uk)?

Also, you raise the issue of accessibility, and that is also an issue here in the UK due to the Disability Discrimination Act (http://www.disability.gov.uk/dda/) - however, a simple W3C validation (http://news.com.com/2100-1038_3-1024234.html) of Google.co.uk (http://validator.w3.org/check?uri=http%3A%2F%2Fwww.google.co.uk), Yahoo.co.uk (http://validator.w3.org/check?uri=http%3A%2F%2Fwww.yahoo.co.uk), and MSN.co.uk (http://validator.w3.org/check?uri=http%3A%2F%2Fwww.msn.co.uk) sites show they all fail miserably (and that's before they even begin to list search results, which are even less compliant). Are you planning to hold these corporate giants up to accessibility issues for people with disabilities as well?

You also raise the issue of "law of trespass", but don't seem to raise this in conjunction with search engine spidering - webmasters can be happy to be indexed by search engines that deliver traffic, but I'm probably not the only webmaster who has previously had to ban Mirago (http://www.miragorobot.com/scripts/mrinfo.asp) and Jetbot (http://www.google.co.uk/search?hl=en&q=jetbot&btnG=Google+Search&meta=) because they invasively use up vast amounts of bandwidth for apparently little purpose.

Will you be campaigning for proper indexing standards across search engines, and also ask that they index public content, rather than simply list anything they find on the server (I'm also sure I'm not the only to have non-linked WS_FTP files, viewed without the toolbar, indexed and listed by Google).

And that's before we even touch upon copyright issues (http://news.com.com/2100-1038_3-1024234.html) relating to use of copyrighted webmaster content by search engines.

As before, I think that the topic "best practice" is a very worthwhile consideration in the triangle of interests that are client/SEO/search engines - but I can't help but feel that the playing field being suggested in such articles is is too focussed on smaller infractions by some SEO's, in the light of bigger issues relating to general search engine practices.

I would genuinely look forward to reading such a series of articles, as you obviously believe passionately in a sense of fair-play and accountability, and it would be great to see these talents used to address these wider issues of our industry.

[Alan Perkins]

Alan, my key disagreement with you in a nutshell is this:

* The position of a listing on a page however it happens doesn't constitute deceptive advertising.No, we don't disagree about that! In fact, I agree with almost your whole post. So...As for the FTC, same thing. It didn't say ads had to go or come after results. It only said they should be segregated and labelled...how do search engines go about segregating and labelling listings that have achieved a higher placement or prominence through deceiving them?

[Alan Perkins]

Good post, Brian, and the short answer is no, I don't have a comparable set of articles criticising the behaviours of search engines. I am not a prodigious article writer. As I said earlier, this set of articles really came from my appearance on the "Black Hat, White Hat and Lots of Grey" session in Chicago.

IMO the search marketing industry includes both search marketers and search engines and, as someone who has concerns over the reputation of the search marketing industry, I am concerned about the actions of search engines as well as search marketers. You've raised some great topics for articles and I'd certainly find some of them interesting to write. :)

[chris]

Well, it's certainly a topic that lives and lives. A point I haven't made elsewhere then.

* Organic listings as a whole are not advertisements. In the context of organic listings, searchers expect to find objectively relevant results.

It is possible for some listings that appear in the context of the organic results to be advertisements. The CommercialAlert case showed that.

You have a low opinion of searchers, I highly doubt most users would say search engine results are objective.

Think back to SearchKing vs Google, in which Google themselves asserted that "its actions cannot be considered wrongful because PageRanks constitute opinions". The court found that:

"PageRanks are constitutionally protected opinions". Nothing objective about them. Indeed the court goes on to say: "At issue is the subjective result produced by an algorithm unique to Google. Just as an alchemist cannot transmute lead into Gold, Page and Brin's statements as to the purported objectivity of the PageRank system cannot transform a subjective representation into an objectively verifiable fact". "PageRanks are opinions - opinions of the significance of particular web sites as the correspond to a search query".

Assume that Page X was an advert, it's listing in a search engine must therefore only constitute an opinion of that advert (the search engine's opinion). Being the opinion of the advert it cannot, therefore, be the advert itself or indeed an advert.

Assume then that we cloak to raise the ranking of that opinion. Can that make it an advert? Clearly, an increase in opinion could not make the statement of the opinion into an advert.

whether a search engine's opinion is right, wrong, or mislead has no difference on it being an opinion and can therefore make it no more or less of an opinion.

If a search engine accepts payment for a listing, however, they have made a conscious choice to not use an opinion in that case. This is what, I believe, the FTC guideline response to the CommercialAlert complaint are about.

[Alan Perkins]

The results of the algorithm are both subjective and objective.

They are subjective in that, according to what criteria the designers of the algorithm believe are important, the algorithm will produce different results. The results may also be altered by human interference when the search engine is seeking to protect the integrity of its search results and counteract deception. When the search engines miss deception, they are partly to blame (for not policing well enough) but the ultimate outcome is that a deceptive ad is placed in the search results.

Search results are objective in that, once the algorithm has been written, it will impartially produce the same results for the same inputs time after time. As the FTC wrote in its response to CommercialAlert (http://www.ftc.gov/os/closings/staff/commercialalertletter.htm):Because search engines historically displayed search results based on relevancy to the search query, as determined by algorithms or other objective criteria, the staff believes that consumers may reasonably expect that the search results displayed by individual search engines are ranked in accordance with this standard industry practice - that is, based on a set of impartial factors. Thus, a departure from the standard practice, such as a search engine's insertion of paid-for placements in the search list, may need to be disclosed clearly and conspicuously to avoid the potential for deception.

My position remains: if searchers need protecting from a search engine colluding with a publisher, then they need equal protection from a publisher deceiving a search engine to acheive the same effect.

[PhilC]

Here is my position, in a nutshell:

[1] Organic listings as a whole are not advertisements. In the context of organic listings, searchers expect to find objectively relevant results.
[2] It is possible for some listings that appear in the context of the organic results to be advertisements. The CommercialAlert case showed that.
[3] Advertisements that appear in the context of the organic results are deceptive if they are not labelled as advertisements, because searchers don't expect to see ads in that context. The CommercialAlert case showed that, too.
[4] Laws on deceptive advertising are designed to protect consumers. Consumer are in this case searchers.
[5] From the perspective of the searcher, it makes no difference if a publisher pays a search engine to give an unlabelled listing higher placement or prominence, or deceives a search engine to give the same listing higher placement or prominence. The searcher sees the same unlabelled listing with higher placement or prominence in both instances.
[6] If one is a deceptive advertisment, then so is the other. This makes logical sense. The searcher sees the same thing in both instances, and laws on deceptive advertising are designed to protect searchers. Why would the searcher need protecting from one instance, but not the other?
[7] The law is still to be tested on this exact issue. However, the US law has been tested on the Pereira case (publisher found liable for SERP contents) and the CommercialAlert case (deceptive ads can appear in organic search results; search engines warned to segregate paid placement and improve disclosure)

I've numbered the items so that they can be easily referred to.

Sorry Alan, but your reasoning is flawed.

Items 1 to 5 - agreed.

Item 6 is a huge leap, and a completely unjustified one. Suddenly an organic listing is defined as an advertisement. We agree that a paid listing is an advertisement, but how do you suddenly arrive at the conclusion that the unpaid listing of item 6 is an advertisement. You haven't shown any justification, or even any reasoning, for the conclusuion. It just suddenly appeared out of the blue in item 6.

For any listing to be "deceptive advertising", it must be an advertisement, and it must deceive the user. I think that's self-evident. In all of your posts, you haven't shown how or why an organic listing can be advertisement, and you haven't shown how it deceives the user.

I'm sorry, but it just doesn't hold water.

[chris]

but the ultimate outcome is that a deceptive ad is placed in the search results.

But Alan, it isn't so just because you say it's so. If they're opinions then they can't be Ads. And they are opinions because that's what the courts said. You keep referring to CommercialAlert as if it means anything other than a slap on the wrists, even if it it did relate to what you trying to derive (which so far nothing you have said indicates that it actually does). The SearchKing case was all about objective criteria giving subjective results(opinions) and altogether more appropriate here as it talks about actual organic listings and the manipulation thereof.

[Alan Perkins]

Items 1 to 5 - agreed.So you agree with item 5, which wasFrom the perspective of the searcher, it makes no difference if a publisher pays a search engine to give an unlabelled listing higher placement or prominence, or deceives a search engine to give the same listing higher placement or prominence. The searcher sees the same unlabelled listing with higher placement or prominence in both instances.OK. Please explain to me why the FTC thought that searchers needed protecting in one instance, and why the same searchers would not need protecting from the same search results if the engine had been deceived rather than paid.

[PhilC]

Yes, I agree with item 5.

OK. Please explain to me why the FTC thought that searchers needed protecting in one instance, and why the same searchers would not need protecting from the same search results if the engine had been deceived rather than paid.
Nobody is suggesting that users don't need protecting from unscrupulous activities, but that's not what this discussion is about. This discussion is about your view of one particular thing that you think constitutes deceptive advertising. Would you like to explain your unjustified leap from item 5 to item 6 now, instead of ignoring it?

[Alan Perkins]

If they're opinions then they can't be Ads.The SearchKing case was an example of a search engine modifying the objective results of its algorithm in order to better reflect the corporate opinion. I'd agree that in cases where the search engine applied human review to a listing that the resultant listing represents an opinion, and that the resultant SearchKing listings represented the opinions of Google staff rather than the results of an objective algorithm and were not ads. But most search results don't undergo a human review process and do represent the results of an objective algorithm rather than the opinions of the search engine staff.

[Mikkel deMib Svendsen]

objective algorithm

I don't agree with that whole "objective algorithm" idea. It's build by people and adjusted by people to serve people. It's not in any way "objective". Weather tweaking is done algorithmically or manually it still represent the opinion of the people behind - and thats what is served up to the users.

I know, in particular, Google has been trying to promote the idea of a "objective algorithm" not to speak of that great democracy of the web represented in PageRank but I just don't buy into it. PageRank is just as far away from democracy (as I know it and like it) as ranking algorithms is from being objective.

[chris]

Forgive the repetition:

"At issue is the subjective result produced by an algorithm unique to Google. Just as an alchemist cannot transmute lead into Gold, Page and Brin's statements as to the purported objectivity of the PageRank system cannot transform a subjective representation into an objectively verifiable fact"

[Alan Perkins]

Would you like to explain your unjustified leap from item 5 to item 6 now, instead of ignoring it?The article explains it, as does most of what I've written in this thread as (I believe) do points 4 and 5 taken together, although they are somwhat brief (as it was a nutshell). I think we're simply at a difference of opinions now, Phil. :)

I don't agree with that whole "objective algorithm" idea.Do you agree with what the FTC wrote in its response to CommercialAlert?:Because search engines historically displayed search results based on relevancy to the search query, as determined by algorithms or other objective criteria, the staff believes that consumers may reasonably expect that the search results displayed by individual search engines are ranked in accordance with this standard industry practice - that is, based on a set of impartial factors. Thus, a departure from the standard practice, such as a search engine's insertion of paid-for placements in the search list, may need to be disclosed clearly and conspicuously to avoid the potential for deception.

[Alan Perkins]

Forgive the repetition...Your quote comes from Lawmeme (http://research.yale.edu/lawmeme/modules.php?name=News&file=print&sid=1147). Here's another quote from there:SearchKing raised one good objection to this line of reasoning: PageRank is computed according to a patented algorithm, and so ought to be objectively determinable. The court responded by saying that while the process may be objective, Google modified the result, which remains a subjective expression of Google's opinion about the value of a web page.Hence my contention that when the result is not modified by a subsequent human review then it remains the result of an objective algorithm. That whole article is a good read. :)

[PhilC]

I think we're simply at a difference of opinions now, Phil. :)I take it that means you don't want to discuss it with me any further. Ok. But if anyone posts in agreement with you, and judging by the posts so far, it seems unlikely, then I'll come back and discuss it with them ;)

Since this is likely to be my last post in this thread, I want to repeat what I said ealier - that I think the subject is just a ploy (a contrived angle) to write about an seo method that you strongly object to - yet again.

[DanThies]

Alan makes some very interesting points, and I agree with some of it some of the time. :) I might be able to make the big leap and consider organic listings advertisements, no matter how they are obtained, but I don't think that's the real issue. I'd rather focus on the notion of what is and isn't deceptive to searchers.

Some thoughts & questions:

Let's assume that my site is using "unapproved" cloaking to achieve a certain ranking, which I would not achieve otherwise. How exactly do we know that my use of cloaking has increased my ranking? This would need to be proved first, in order for my actions to constitute deceptive advertising.
The search engine only displays a title and snippet. Let's assume the title and snippet displayed from my cloaked content are the same as (in the case of the title) or substantially similar to (in the case of the snippet) what would be seen without cloaking. How is the searcher deceived? I would agree that a substantive change in the page title between the two versions could be deceptive.
Deceiving a search engine to place an ad in the organic listings might be fraudulent - just as if I used fake financial statements to con a billboard owner into placing my advertisement on their billboard. I just don't see how it meets the definition of false advertising.


So we have two scenarios here that are interesting...

Deceptive advertising scenario: The searcher is deceived because they see a different title and snippet due to cloaking... this would still need to meet some standard for deception, such as using "Free Viagra" on the cloaked version and "Buy Viagra" on the version displayed to humans... This would also apply to any of the fabled "cloaked page isn't about Mickey Mouse after all but actually shows porn" scenarios, although I haven't actually seen this happen IRL.
Defrauding the search engine: The search engine has been defrauded - they have given valuable advertising space to my website under false pretenses. Giving my site this space via approved cloaking is their business decision, me obtaining that space by deception might be fraud. Maybe.


Sorry Alan, but that's about as close as I can get to agreeing with your interpretation. :D I do see a scenario that could be called deceptive advertising, but it's very narrow.

[PhilC]

Hi Dan.

Alan maintains that, as long as the engine has been deceived, then the listing in the serps is an advertisement. But if the engine has not been deceived, then the listing is not an advertisement. He agreed with exactly that earlier in the thread. How can that view be substantiated?

If a listing is an advertisement, then we can discuss whether or not the user is deceived by it, but if it is not a advertisement, it doesn't matter either way whether or not the user is deceived by it - for the pusposes of this discussion.

[DanThies]

Phil,

I'm willing to go further than Alan for the sake of argument, and consider ALL organic listings advertisements. Or, at least the portion of the listing which is obtained from the web site in question, which is usually a title and snippet.

Even if we agree, for the sake of argument, that ALL organic listings are advertisements, I still don't agree that the means by which they are obtained would immediately cause them to be deceptive advertisements in the legal sense. The only way I could see the advertisement as deceptive is if it uses some sort of "bait and switch" as I described.

Deceiving the search engine is another matter entirely, and in my opinion it remains the search engine's problem. If the searcher is 'deceived' because they expected the search engine to deliver some pure ideal of relevance, then they can only have been have been deceived by the search engine itself.

To avoid this type of deception, perhaps search engines should clearly disclose to searchers how easy it is for SEO practices (of all types) to influence the organic search results. :p

[Alan Perkins]

Let's assume that my site is using "unapproved" cloaking to achieve a certain ranking, which I would not achieve otherwise. How exactly do we know that my use of cloaking has increased my ranking? This would need to be proved first, in order for my actions to constitute deceptive advertising.Correct. I see no problem with cloaking if it's used to decrease placement or prominence for the cloaker.

The intent is as much an issue as the outcome, IMO. If the intent is to increase ranking, then the intent is to advertise deceptively in search results.
The search engine only displays a title and snippet. Let's assume the title and snippet displayed from my cloaked content are the same as (in the case of the title) or substantially similar to (in the case of the snippet) what would be seen without cloaking. How is the searcher deceived?The searcher is deceived if the placement or prominence with cloaking is higher than the placement or prominence without cloaking. Cloaking is not the only method to achieve this, BTW. :)
Deceiving a search engine to place an ad in the organic listings might be fraudulent - just as if I used fake financial statements to con a billboard owner into placing my advertisement on their billboard. I just don't see how it meets the definition of false advertising.It meets it in the same sense as CommercialAlert were complaining about, IMO. In their response to search engines, the FTC quoted this law (http://www.law.cornell.edu/uscode/15/45.html) as being the one they were concerned about:Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

[PhilC]

I can't find anything to disagree with in your post, Dan. But, as everyone knows, I'm not a disagreeable person :D

[Alan Perkins]

Deceiving the search engine is another matter entirely, and in my opinion it remains the search engine's problem. If the searcher is 'deceived' because they expected the search engine to deliver some pure ideal of relevance, then they can only have been have been deceived by the search engine itself.I agree with you there, except in certain special circumstances. Those circumstances are when the search engine is deceived because it chooses to obey robots.txt, use its own user agent and IP address and, generally, make itself known and behave itself.

A search engine may defeat cloaking and other forms of deception by not doing those things, and I would argue that any search engine that didn't obey robots.txt, didn't send its own UA and didn't use its own IP addresses was solely responsible for its results. But that would be an unethical and possibly illegal search engine!

To avoid this type of deception, perhaps search engines should clearly disclose to searchers how easy it is for SEO practices (of all types) to influence the organic search results. :pGood one. Perhaps they could give lessons in it. :eek:

[DanThies]

I agree with you there, except in certain special circumstances. Those circumstances are when the search engine is deceived because it chooses to obey robots.txt, use its own user agent and IP address and, generally, make itself known and behave itself.

A search engine may defeat cloaking and other forms of deception by not doing those things, and I would argue that any search engine that didn't obey robots.txt, didn't send its own UA and didn't use its own IP addresses was solely responsible for its results. But that would be an unethical and possibly illegal search engine!
The robot exclusion protocol isn't the law, it's a voluntary standard. A search engine could defeat IP-based cloaking while using its own UA. All they'd have to do is use different IP addresses - such as by using open proxies, dial up accounts, etc. There's no law that says you have to be your own ISP and use your own network. Are you saying it would be illegal, deceptive and unethical for Google to co-locate some Googlebot servers at AOL, Earthlink, etc. and use dynamic instead of static IP addresses?

A search engine could defeat UA cloaking by using a different UA - there's nothing in the protocol that says you can't create a new spider/UA every day. I don't know what robots.txt has to do with it, unless you're talking about cloaking that too, and only allowing UA's from known search engine IPs to spider the site. Even in this case, getting a different robots.txt from different IPs would be enough evidence of cloaking, without ever seeing the site.

If cloakers didn't have any way to reliably determine whether or not they were dealing with a spider, then cloaking would no longer serve its purpose.
Good one. Perhaps they could give lessons in it. :eek:
I'm not joking, Alan. I don't see why the "about these results" page shouldn't include some statement about SEO affecting search results. They don't have to describe the methods any more than they already have. If anyone is deceiving searchers in the cases you describe, the search engine is definitely doing so unless they clearly and prominently disclose that they are easily deceived and that some listings may be the result of manipulation. Maybe they could even add some explanation of "why we don't bother to detect cloaking automatically even though we have hundreds of software engineers who could probably solve the problem today."

[Marcia]

I don't see how the regular search listings can meet the definition of advertising (http://www.google.com/search?hl=en&lr=&c2coff=1&rls=GGLD,GGLD:2005-11,GGLD:en&oi=defmore&q=define:advertising).

[Alan Perkins]

Are you saying it would be illegal, deceptive and unethical for Google to co-locate some Googlebot servers at AOL, Earthlink, etc. and use dynamic instead of static IP addresses?I'm saying I know I as a webmaster would be none too happy about it. I want to know who's requesting my pages and for what purpose, so I can choose whether or not to continue to make those pages available to them and whether or not I want to be indexed by them. There are enough rogue spiders masquerading as humans, without adding the spiders you want to the list, IMO.If cloakers didn't have any way to reliably determine whether or not they were dealing with a spider, then cloaking would no longer serve its purpose.Agreed.I'm not joking, Alan. I don't see why the "about these results" page shouldn't include some statement about SEO affecting search results. I agree (I thought you knew that). :)

[DanThies]

I don't see how the regular search listings can meet the definition of advertising (http://www.google.com/search?hl=en&lr=&c2coff=1&rls=GGLD,GGLD:2005-11,GGLD:en&oi=defmore&q=define:advertising).
I agree with you, for listings that don't result from some relationship with the search engine. XML feeds and paid inclusion are a different story, though. If I am paying Yahoo by the click, I'd call that advertising.

[DanThies]

I'm saying I know I as a webmaster would be none too happy about it. I want to know who's requesting my pages and for what purpose, so I can choose whether or not to continue to make those pages available to them and whether or not I want to be indexed by them.
So if Googlebot shows up at your site and represents itself as Googlebot, you'll still be unhappy because you can't look up the IP address to verify that the spider which has properly identified itself is actually a spider and not a competitor trying to look at your cloaked source code?

[Alan Perkins]

So if Googlebot shows up at your site and represents itself as Googlebot, you'll still be unhappy because you can't look up the IP address to verify that the spider which has properly identified itself is actually a spider and not a competitor trying to look at your cloaked source code?I'm saying I'd want a spider to at least use a known user agent and obey robots.txt. What do you think of those spiders out there now that don't do that?

BTW I don't cloak. :D

[Mikkel deMib Svendsen]

What do you think of those spiders out there now that don't do that?

Allan, I think we can agree on one thing here, and that's not too often, so I have to grab this one: I hate them - the spiders that don't obey robots.txt :)

[projectphp]

I don't see how the regular search listings can meet the definition of advertising.
Interesting, none of those was an actual statute or legal definition...

Taht said, I wonder if you got to this one Marcia:
The means by which messages are brought to the attention of the public, through various media, in a persuasive and memorable fashion
http://sfbpc.fws.gov/glossary.htm
Does that one not fit?

We all get hung up on the definition of aadvertising in relation to organic SERPs. Why? One can promoyte ones product in deceptive and illegal ways that are not advertising per se, but still promotional. A bribe, for example, is illegal. Faking medical reports and test rsults, antoher.

So I have a few questions:
Is advertising the only way a business can engage in deceptive advertising using a website and search engines? Are there any ways in which a website can be deceptive that don't qualify as advertising but are still illegal? Is it a consumer protection agencies job to protect us from deception only when it is bad, or is disclosure the real heart of the issue?

Also, if you are legally responsible for all content on your site, where does cloacked content fall in this understanding?

[cline]

Search engine listings are like other forms of journalism. The only difference is that it's a machine that's doing the editing. SEO is therefore analogous to Public Relations.

So, for public relations efforts, is it "deceptive advertising" to deceive the editors to get out a message?

Assuming that the message itself isn't deceptive advertising, I don't think it is. It might be defined as some other unethical practice, but not "deceptive advertising."

[Gurtie]

Is advertising the only way a business can engage in deceptive advertising using a website and search engines?
yes - very few people are arguing that some sites don't use deceptive practices to rank, but to be prosecuted for deceptive advertising the advertiser must meet specific criteria and the scenario in the paper doesn't.

Are there any ways in which a website can be deceptive that don't qualify as advertising but are still illegal?
of course
Is it a consumer protection agencies job to protect us from deception only when it is bad, or is disclosure the real heart of the issue? Surely we only need protection from bad deception? (although I'm having a hard job thinking of what would be good deception?). However you have to take account of what a 'reasonable person' would be expected to consider deception. Consumer protection agencies act on reasonable complaints. No one is going to complain if the results they're getting when they search are for relevant sites.

[projectphp]

Surely we only need protection from bad deception?
I personally don't want to be protected, in some abstract sense of someone else deciding what is right for me. I want to have the ability to decide for myself. Cloaking denies me that chance, as does PI, and I personally, were i a part of the FTC in the ruling Alan quotes, would have required that individual listings be labelled.

I, as a searcher and consumer, want 100% disclosure. If my broker takes money to recommend a fund, I want to know. If a newspaper "reviews" a restaraunt and gets paid, I want to know. If a page ranks well, I want to be able to see why.

But then, I object to a lot of what PR agencies do to get "free" publicity (paying a PR firm to get publicity, like paying for SEO to get the "free" traffic, requires quotations in my kind). Maybe my view is somewhat different as I tend to consider what I want as a consumer more than what matters to my business endeavours.

[PhilC]

I personally don't want to be protected, in some abstract sense of someone else deciding what is right for me. I want to have the ability to decide for myself. Cloaking denies me that chance
In the sense that I think you mean, cloaking does deny you that chance, but the truth is that, without cloaking, you never had the chance in the first place, because the relevant content page was buried in the serps, and you wouldn't have seen it.

[Jill Whalen]

because the relevant content page was buried in the serps, and you wouldn't have seen it.

Then it obviously wasn't relevant. (According to the search algo at hand.)

[projectphp]

Ok,, another question, if I cloak content that is relevant to a user's search and redirects to another page that is also "on topic", but the cloaked page contains illegalities (lets say a promise that the site doesn't fulfill, uses a slogan from another site etc etc) is that illegal?

[Jill Whalen]

ProjectPHP, I would say that the site itself would be guilty of deceptive advertising in that situation.

[PhilC]

Then it obviously wasn't relevant. (According to the search algo at hand.)The part in brackets saved your statement, Jill - almost. There are many reasons why an extremely relevant page doesn't rank well, but they don't mean that the page doesn't belong at or near the top for a particular search.

I am sure you agree with that, because, like everyone else, you try to ensure that pages that you think should be at the top for particular searches, but aren't, get to the top. The only difference is the method. The pages are highly relevant for the searchterm, but both were buried in the serps.

Ok,, another question, if I cloak content that is relevant to a user's search and redirects to another page that is also "on topic", but the cloaked page contains illegalities (lets say a promise that the site doesn't fulfill, uses a slogan from another site etc etc) is that illegal?Cloaking isn't illegal, but the question probably referred to deceptive advertising. IMO, it would be wrong for the cloaked page to contain false information, although the chances are that nobody would ever know. It would only be seen by users if the false information turned up in the listed Title or snippet.

The posts in this thread have pretty well established that organic listings cannot be "deceptive advertising", so it wouldn't be illegal, imo.

[projectphp]

The posts in this thread have pretty well established that organic listings cannot be "deceptive advertising", so it wouldn't be illegal, imo.
So wait, I can put anything i like on my site, anything illegal, and that is OK if no one sees it? In fact, if people see it on another site quoting mine, that is still ok, even though what I worte is illegal...

Hmmm... I wonder if the people who work at consumer protection agencies have the same view.

[Gurtie]

I'm almost with you on that one ProjectPHP BUT there are some conditions there.

First something doesn't actually need to be an advert to be classed as deceptive advertising, that is, one definition of deceptive advertising is advertising and pretending it isn't - which is what Alans article refers to - but another definition of deceptive advertising is deceiving the consumer by materially misleading them about the product or service they will be receiving. That may be in any form of marketing activity and frequently is a combination.

So actually I would say SERPS snippets could form part of a case of deceptive advertising if they were lying to the consumer (subject to the misleading snippets being the fault of the site owner and not of the search engine) which I think would require the website to have that content on their site at the time of the alleged offence (whether or not it was hidden) but I would still argue totally against serps listings being called Ads or any being considered deceptive advertising simply because of their placement or method of getting there.

The only way I can ever see SERPS snippets being part of a case of deceptive advertising would be if a site was cloaking to fool both SE's and customers into believeing they sold something different than they actually did, in which case the deception may appear in the snippet but not on the actual site. Technically that could happen but in practice it won't because anyone lying to that degree will also lie on their own site and so the snippet wouldn't need to be brought into it.

As a theoritical argument this is fun but I really doubt anyone will ever attempt to prove this one way or another in court :)