“Adpocalypse”

By: Carl Rustad

Youtube Hate Preachers Share Screen With Household Names.” “Google’s Youtube has Continued Showing Brands’ Ads With Racist and Other Objectionable Videos.” These are the headlines Google faced in March 2017, as ads for Google’s advertising partners allegedly appeared alongside hateful or inappropriate Youtube videos. Within days, high-profile advertisers including Wal-mart, Pepsico, General Motors, AT&T, Dish, and Starbucks all pulled their ads from the platform

Google responded to these allegations by “implementing broader demonetization policies around videos that are perceived to be hateful or inflammatory” and “strengthen[ing] advertiser controls for video and display ads.” Using algorithms, Youtube “automatically weed[s] out inappropriate content,” sorting each uploaded video into categories purportedly reflecting their desirability to advertisers. Advertisers can exclude videos from categories like “tragedy and conflict,” “sensitive social issues,” “sexually suggestive content,” “sensational and shocking,” and “profanity and rough language.” Clearly these options reach far more content than the originally-complained-of hate speech. Videos determined inappropriate for advertisers are “demonetized,” meaning ads will not appear on them, they are deprioritized in search, and content creators will not receive any ad revenue from the video. The resulting drop in ad revenue is referred to as “Adpocalypse.”

As a result of these efforts, Youtube claimed “many advertisers have resumed their media campaigns on Youtube,” but also acknowledged that content creators faced “revenue fluctuations” due to demonetization and promised to provide “more detail around advertiser-friendly guidelines.”  Meanwhile, some content creators on the platform claimed to see an initial 80 percent drop in ad revenue due to demonetization, leveling off to a “40, 50, 60 percent drop” as videos were deemed not suitable for all advertisers. Prominent vlogger Vlogbrothers opined “[demonetization] has really squeezed creators who are making content that’s maybe good, but not, like, super-happy-family-fun-time stuff.”

Private Platforms Provide Strong Extralegal IP Protections

Adpocalypse demonstrates both the interest and the power that companies have in protecting their brands on private platforms. Brands are already entitled to certain legal protections. A trademark holder is protected against damaging associations in several scenarios, including when unauthorized use of their trademark causes confusion as to the source or sponsorship of a product, or tarnishes the brand by association with “unsavory” ideas. See AMF, Inc. v. Sleekcraft Boats; Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. On the other hand, there is no trademark infringement when the trademark is being used to describe a product or talk about a competitor’s product. See KP Permanent Make-Up Inc. v. Lasting Impression I, Inc. These are considered “fair uses” of a trademark.

But the companies on Youtube, of course, do not have to point to their carefully balanced intellectual property rights in order to control their representation on the platform. They can simply refuse to advertise on a platform if it tends to associate their brand with any less-than-ideal content. This is not a new phenomenon. Media has long catered to advertisers, with media scholar C. Edwin Baker claiming “the greatest threat of censorship in this country comes not from the government, but from advertisers . . . .” As online platforms mediate a steadily increasing amount of our time, advertiser censorship may become correspondingly more pervasive and omnipresent. With algorithmic and computing advances, such censorship can be systematically extended to hosted individual speech as seen in Adpocalypse.  

Real Time Content Moderation: The Future of Advertising? 

Adpocalypse concerned advertisers’ association with undesirable uploaded videos, which are scanned for content and demonetized and search deprioritized if they are deemed unsuitable for advertisers. This hawkish breed of moderation is enabled by advances in automated decision making. Over 500 hours of content are uploaded to Youtube every minute; each video must be scanned and categorized as safe or unsafe for advertisers. 

Platforms are now facing pressure to provide real time moderation to prevent violations of their terms of service by censoring disinformation, incitations of violence, and other abuses. Facebook Horizons already includes real time moderation features  allowing it to instantly deplatform or censor abusive–as determined by Facebook alone–virtual reality users. The advantages of such a system are obvious. Hate speech, harassment, and other universally-condemned behavior can be taken offline before it happens. Unfortunately, the concerns real time moderation raises are just as obvious. 

Platforms will continue to compete for ad revenue. As Adpocalypse demonstrates, online platforms are not simply censoring hate speech; they are beginning to censor anything not “advertiser-friendly”. Allowing fine control over the spaces in which advertisers’ products appear, not just how their ads appear, is a profitable course of action. One easily foreseeable use of real time moderation is to limit the visibility of advertiser-unfriendly speech in VR chat. But there is no reason to believe the technology will be confined to such transparent and simplistic uses. Facebook already sells sophisticated and hyper-targeted ads. Plus, US advertisers are willing to pay about $250 billion a year to control what consumers associate with their products. The market is there.

Given the impending capability and incentives for online platforms to moderate speech and the environment of speech in real time, it is time to take a hard look at the role of advertisers in platform censorship. While the First Amendment does not apply to private platforms, consumers should demand transparency from platforms about how speech is moderated and hold them accountable when moderation technology is abused to accommodate advertisers. 

Lawmakers Set Their Sights on Restricting Targeted Advertising

By: Laura Ames

Anyone who spends time online has encountered “surveillance advertising.” You enter something into your search engine, and immediately encounter ads for related products on other sites. Targeted advertising shows individual consumers certain ads based on inferences drawn from their interests, demographics, or other characteristics. This notion itself might not seem particularly harmful, but these data are accrued by tracking users’ activities online. Ad tech companies identify the internet-connected devices that consumers use to search, make purchases, use social media, watch videos, and otherwise interact with the digital world. Such companies then compile these data into user profiles, match the profiles with ads, and then place the ads where consumers will view them. In addition to basic privacy concerns, the Consumer Federation of America (CFA) points to the potential for companies to hide personalized pricing from consumers or to promote unhealthy products and perpetuate fraud. Perhaps the largest concern is that the large stores of personal data that these companies maintain put consumers at risk of having their privacy invaded, identity theft, and malicious tracking.   

In response to these concerns, Democratic lawmakers unveiled the Banning Surveillance Advertising Act (BSSA) in an attempt to restrict the practice and under a general consensus that surveillance advertising is a threat to individual users as well as society at large. This move prompted opponents to argue that the BSSA is overly broad and will harm users, small businesses, and large tech companies alike.

What Does the BSSA Do? 

The BSSA is sponsored by Senator Cory Booker and Representatives Jan Schakowsky and Anna Eshoo. The bill bars digital advertisers from targeting their ads to users and also prohibits advertisers from targeting ads based on protected information like race, gender, religion, or other personal data purchased from data brokers. According to Senator Booker, surveillance advertising is “a predatory and invasive practice,” and the resulting hoarding of data not only “abuses privacy, but also drives the spread of misinformation, domestic extremism, racial division, and violence.”

The BSSA is broad, but it does provide several exceptions. Notably, it allows location-based targeting and context advertising, which occurs when companies match ads to the content of a particular site. The bill suggests delegating power to the FCC and state attorneys general to enforce violations. It also allows private citizens to bring civil actions against companies that violate the ban with monetary penalties up to $1,000 for negligent violations and up to $5,000 for “reckless, knowing, willful, or intentional” violations. The BSSA has support from many public organizations and a number of professors and academicians. Among several tech companies supporting the BSSA is the privacy-focused search engine DuckDuckGo. Its CEO, Gabriel Weinberg, opined that targeted ads are “dangerous to society” and pointed to DuckDuckGo as evidence that “you can run a successful and profitable ad-based business without building profiles on people.” 

The BSSA as Part of a Larger Legislative Agenda 

The BSSA is just one bill among a number of pieces of legislation aiming to restrict the power of large tech companies. Lawmakers have grown increasingly focused on bills regulating social media companies since Facebook whistleblower Frances Haugen testified before Congress in 2021. These bills target a wide variety of topics including antitrust, privacy, child protection, misinformation, and cryptocurrency regulation. Most of these bills appear to be rather long shots, however, because although the Biden administration supports tech industry reform, so many other issues are high priorities for it. Despite this hurdle, lawmakers are currently making a concerted push with these tech bills because the legislature’s attention will soon turn to the 2022 midterms. Additionally, Democrats, who have broader support for tech regulations, worry they could lose control of Congress. Senator Amy Klobuchar argued that once fall comes, “it will be very difficult to get things done because everything is about the election.” 

Tech and Marketing Companies Push Back

In general, tech companies tend to argue that targeted advertising benefits consumers and businesses alike. First, companies argue that this method allows users to see ads that are directly relevant to their needs or interests. Experts rebut this theory with the fact that in order to provide these relevant ads, tech companies must collect and store a great deal of data on users, which can put that data at risk of interference by third parties. Companies also argue that this legislation would drastically change their business models. Marketing and global media platform The Drum predicted that the BSSA “could have a massive impact on the ad industry as well as harm small businesses.” The Interactive Advertising Bureau (IAB), which includes over 700 brands, agencies, media firms, and tech companies, issued a statement strongly condemning the BSSA.  IAB CEO David Cohen argued that the BSSA would “effectively eliminate internet advertising… jeopardizing an estimated 17 million jobs primarily at small- and medium-sized businesses.” The IAB and others argue that targeted advertising is a cost-effective way to precisely advertise to particular users. However, the CFA points to evidence that contextual advertising, which is allowed under the BSSA, is more cost-effective for advertisers and provides greater revenue for publishers. 

Likelihood of the BSSA’s Success

In the past several years, there has been growing bipartisan support for bills addressing the increasing power of tech companies. This support would seem to suggest that these pieces of tech legislation have a better chance of advancing than other more controversial legislation. However, even with this broader support, dozens of bills addressing tech industry power have failed recently, leaving America behind a number of other countries in this area. One of the major problems impeding bipartisan progress is that while both parties tend to agree that Congress needs to address the tremendous power that tech companies have, they do not align on the methods the government should use to address the problem. For example, Democrats have called for measures that would compel companies to remove misinformation and other harmful content while Republicans are largely concerned with laws barring companies from censoring or removing content. According to Rebecca Allensworth, a professor at Vanderbilt Law School, the larger issue is that ultimately, “regulation is regulation, so you will have a hard time bringing a lot of Republicans on board for a bill viewed as a heavy-handed aggressive takedown of Big Tech.” Given Congress’ recent track record in moving major pieces of legislation, and powerful opposition from the ad tech industry, the BSSA might be abandoned along with other recent technology legislation.  

The Key to the YouTube Advertisement Crisis: an Improved AI

maxresdefaultBy Derk Westermeyer

A little over 4 years ago, comedian Ethan Klein uploaded his first video on his YouTube Channel, h3h3productions. That video’s premise was about how people use toilet paper. While this type of comedy may not be for everyone, Ethan’s channel has largely been a success. Since that first video, Ethan has uploaded hundreds more videos to his channel, a large portion of which generate millions of views each. Continue reading

No Man’s Sky: Legal Risks of Raised Expectations in Video Game Marketing

no-mansBy Dan Hagen

Hello Games’ No Man’s Sky is arguably this decade’s highest profile game that spectacularly failed to meet expectations set by its developer. Promises made by Hello Games through marketing and promotion, leading right up to the game’s launch, pushed the legal envelope and should serve as a cautionary tale for video game developers and marketing teams. Just how far can a developer go before their hype becomes illegal misrepresentation?

Continue reading