refer a friend: children and viral marketing

On August 22 the Center for Digital Democracy, the Center for Science in the Public Interest and 15 other consumer and youth advocacy groups filed a series of complaints with the Federal Trade Commission alleging breaches of the Children's Online Privacy Protection Act (COPPA).

The complaints call on the FTC to investigate a number of companies - including General Mills, McDonalds, Viacom and others - for unfair and deceptive marketing practices which encourage children to engage in viral marketing.  Specifically, these campaigns allegedly  induce children to 'refer-a-friend' to receive promotional material from the companies. In so doing, the children are invited to submit both their own personal information and the personal information of their friends, without parental consent, which the complainants argue is in direct violation of COPPA.

While it is the products involved which have riled up a number of the complainant groups (news coverage has focused in particular on the fact that these companies are 'selling sugar' to kids), the complaints raise the thornier issue of what's at stake in the privacy protections provided by COPPA. Of course, it seems to be fairly black and white that we want to minimise children's exposure to junk food marketing, and that if we can do this at the same time as preventing companies from exploiting technologies' ability to collect data on them it seems like a win win.

But this characterisation overlooks the very real impact COPPA - and, in particular, the parental consent provisions - actually have on children's right to privacy. If we think that children should have a meaningful right to privacy, subjecting it to parental oversight is always going to be complicated. While parents may be best placed to act in the interests of their children, they are also best placed to undermine those rights. As a result, the panopticon of surveillance enabled by the web and legislatively ennobled by legislation like COPPA is taking away the ability of children to explore their world anonymously or, at least, in private. This has both overt (the ten year old boy who gets beaten by his parents for looking at something they disapprove of) and more insidious (an entire generation growing up with a sense of being constantly monitored) consequences.

At the same time, the marketing campaigns concerned involve another angle which is particularly troubling for the relationship between children and their digital identity: the incentive to 'refer-a-friend'. In so doing, these campaigns encourage kids to commodify the identity-markers (indeed, the identities) of other kids and 'sell' them (or give them) to corporations. Underpinning this practice is the inculcation of an idea that identities (your own and other people's) are saleable, that people are commodities. I can't help but wonder how that attitude will manifest when these kids are older.

Of course, a balance needs to be struck. Protecting kids from the ever expanding reach of the consumption machine is a noble goal. But we  need to make sure that in seeking to ameliorate one incursion we don't accidentally do more harm to young people's privacy, safety and sense of themselves.

High Court Appeal Google Adwords

The High Court has given Google leave to appeal April's Federal Court decision in the Adwords case that held Google liable for the misleading and deceptive conduct of their advertisers. The case addresses circumstances where the advertisers concerned used the names of competitors as keywords to trigger their own ads appearing, which meant that the  advertisements purported to be for a company which the account holders did not actually represent. The Federal Court held that Google was also liable for the misleading representations because in publishing the advertisement Google made a representation that the content of the sponsored link responded to the user’s keyword search. 

In finding Google liable for the conduct of the advertisers, the decision obviously has much broader implications for search engine liability for the content of advertisements and the outcome of the appeal to the High Court will be key in shaping the future of online advertising protocols in Australia.

I think there will also have interesting implications for behavioural advertising (or as Google would prefer that we think of it, "internet-based advertising") on the web. After all, the case looks at a fairly clear cut fact pattern: the advertisers concerned misleadingly linked their ad to searches for competitors. However, since Google's search results are tweaked by the personalised search algorithm - and now the social networking algorithm of "Search Plus Your World", we are looking at a rich tapestry of publishers and sources of both consumer deception and risks to privacy - and a search engine which is not afraid to litigate out of liability (and responsibility) for what we are being told.