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Old 03-23-2005   #1
Alan Perkins
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Deceptive Advertising in Search Results

I'm looking for a means to respond to Danny's blog on my article Search Marketing Techniques, Deceptive Advertising Laws & Other Laws. 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.

Quote:
Originally Posted by Danny
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.
Quote:
Originally Posted by Danny
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:
Quote:
Originally Posted by Article
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.
Quote:
Originally Posted by Danny
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.
Quote:
Originally Posted by Danny
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.
Quote:
Originally Posted by Danny
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!
Quote:
Originally Posted by Danny
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.
Quote:
Originally Posted by Danny
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.

Quote:
Originally Posted by Danny
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.

Quote:
Originally Posted by Danny
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?
Quote:
Originally Posted by Danny
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.
Quote:
Originally Posted by Danny
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!
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Old 03-23-2005   #2
dannysullivan
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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.

Quote:
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.
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Old 03-23-2005   #3
Alan Perkins
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Quote:
Originally Posted by dannysullivan
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.

Quote:
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.

Quote:
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 in 1999 that talks about using XML to feed content to search engines! 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
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Old 03-23-2005   #4
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Quote:
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 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.

Quote:
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.
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Old 03-23-2005   #5
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We were directed here from another thread that was started about the "legalities" artricle. Here's what I posted in that thread:-

Quote:
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.
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Old 03-23-2005   #6
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Quote:
Originally Posted by dannysullivan
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?

Quote:
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" link:
Quote:
Originally Posted by Yahoo About This Page
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 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".
Quote:
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.
Quote:
You can't -- though I've written 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.

Quote:
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:
Quote:
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:
Quote:
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.

Quote:
Google Scholar results are organic results. You mean they're segregated from the web search results, correct?
Yep.
Quote:
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.
Quote:
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.
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Old 03-23-2005   #7
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Quote:
Originally Posted by PhilC
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.
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Old 03-23-2005   #8
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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.
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Old 03-23-2005   #9
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Quote:
Originally Posted by PhilC
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.

Quote:
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.

Quote:
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.
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Old 03-23-2005   #10
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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.
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Old 03-23-2005   #11
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Quote:
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.

Quote:
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.
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Old 03-23-2005   #12
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Quote:
Originally Posted by PhilC
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.
Quote:
Originally Posted by PhilC
I cannot see anything in that letter that could be interpreted as advertising.
OK, that's yoor opinion. I disagree.
Quote:
Originally Posted by dannysullivan
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.
Quote:
Originally Posted by dannysullivan
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.
Quote:
Honestly, I doubt they'd go in there.
I have no idea. That's almost a different question.
Quote:
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.
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Old 03-23-2005   #13
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I'm confused!

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.

Last edited by MakeMeTop : 03-23-2005 at 11:27 AM.
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Old 03-23-2005   #14
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Originally Posted by MakeMeTop
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.

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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.

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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.

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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?

Last edited by Alan Perkins : 03-23-2005 at 12:01 PM.
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Old 03-23-2005   #15
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Originally Posted by Alan Perkins
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.
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Old 03-23-2005   #16
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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.
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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.
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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.
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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.

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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.
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Old 03-23-2005   #17
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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.
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Old 03-23-2005   #18
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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.
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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.
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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.
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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).
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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,
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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
I 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.
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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.

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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.
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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.
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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.
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Old 03-23-2005   #19
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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.
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Old 03-23-2005   #20
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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.
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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.
Yep, that's the issue. The question is what are ads?
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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:
Quote:
Commercial Alert Files Complaint Against Search Engines for Deceptive Ads
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.
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FTC Response to CommercialAlert
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.
Quote:
FTC Response to Search Engines
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.

Last edited by Alan Perkins : 03-23-2005 at 05:38 PM.
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