The line is clear: is money being exchanged in order to promote a product? That's advertising.
Someone I know mentioning a product because they want to recommend it to me? Not advertising.
Giving out "free" samples? Presumably someone is being paid to do that, so advertising.
We can later quibble about edge cases and how to handle someone putting up a sign for their business. Many countries have regulations about visual noise, so that should be considered as well.
But it's pretty easy to distinguish advertising that seeks to manipulate, and putting a stop to that. Hell, we could start by surfacing the dark data broker market and banning it altogether. That alone should remove the most egregious cases of privacy abuse.
this is obviously not a clear line. No money is exchanged when I promote my own product through my own channels, nor when I promote my friends products, whether I disclose it as promotion, or disguise it as my genuine unaffiliated opinion. Sometimes it really is a genuine opinion! Even worse: sometimes a genuine opinion becomes an incentivized one later on as someone's audience grows
the good news is there is a solution that doesn't require playing these cat & mouse games and top down authority deciding what is allowed speech: you want better ways to reach the people who want your product.
Ads are a bad solution to a genuine problem in society. They will persist as long as the problem exists. People who sell things need ways to find buyers. Solve the root problem of discernment rather than punishing everyone indiscriminately
No, you've got that backwards. People who sell things should have a way of announcing their product to the world. Buyers who are interested in that type of product should be the ones seeking out the companies, not the other way around.
The current approach of companies pushing their products to everyone is how we got to the mess we are in today. Companies will cheat, lie, and break every law in existence in order to make more money. Laws need to be made in order for companies to stop abusing people.
You know what worked well? Product catalogs. Companies buy ad space in specific print or digital media. Consumers can consult that media whenever they want to purchase a specific product. This is what ecommerce sites should be. Give the consumer the tools to search for specific product types, brands, specifications, etc.; get rid of fake reviews and only show honest reviews from verified purchases and vetted reviewers, and there you go. Consumers can discover products, and companies can advertise.
This, of course, is only wishful thinking, since companies would rather continue to lie, cheat, and steal, as that's how the big bucks are made.
I honestly find it disturbing that with all of humanity's progress and all the brilliant technology we've invented, all of our communication channels are corrupted by companies who want to make us buy stuff, and by propaganda from agencies that want to make us think or act a certain way. Like holy shit, people, is this really the best we can do? It's exhausting having to constantly fight against being manipulated or exploited.
I basically agree with the spirit of what you're saying but the line is not clear.
What if we took the approach of creating a clear legal distinction between advertising companies and non-advertising companies?
For example, if you want to be an advertising company, there are limits on what and how you can publish (such as having to use pull instead of push channels), and you don't get to also try to be a product or service company. If you want to be a non-advertising company, then you can't publish advertising.
This seems effective and also a much easier scenario to envision for those who find legal restrictions on speech to be unpalatable or inconceivable. It is actually not that outlandish at all; rather it's well within the bounds of what we already do. We already categorize companies by function and apply all kinds of different rules (restrictions on where and when and how they can operate, requirements for licensing and registration, environmental standards, liability standards, taxation rules) to companies based on what they produce or what purpose they serve, and we already accept that doing so has societal benefits.
There is also plenty of precedent for regulations that discourage cross-category operations precisely to simplify enforcement and manage risk. Healthcare providers are separated from payers; drugs cannot also be dietary supplements; legal businesses can't combine with non-law businesses; and so on. Even if cross-category operations aren't completely banned, the rules create friction and deterrence that still has important effects.
This is simply not true. You can buy or rent a server right now, run any kind of communication software on it that you want, and use that to communicate with anyone anywhere in the world, 100% ad-free. There are even pre-existing software stacks, like Mastodon, that make setting this up trivial.
I honestly find it disturbing that you don't appear to realise that you are asking for control over someone else's communication platform.
So your problem with advertising is really a problem with people, with human nature.
The truth is that whatever system you impose (with force no doubt!) would be optimized by the humans who exist in it.
People are not born with a knowledge of all of the products on the market, and the current price ranges for them.
Honestly, you couldn't have said that any better. I always think exactly about that. Where we are today, the technology that we have at our disposal, and yet this whole machinery working 24hs non-stop to put these consumption ideas on our heads, cheap propaganda and useless stuff to manipulate us like puppets. Really disgusting.
The most prosperous society ever known to man, a veritable wonderland of consumer choice and entrepreneurial opportunity that draws people from all over the world to study visit and move here. What a mess.
So we have some annoying advertising. Small price.
Ha. Tell that to the millions of victims from false advertising of Big Tobacco and Big Pharma.
That prosperous society and veritable wonderland is not looking so great these days. Perhaps the fact that the tools built for psychologically manipulating people into buying things can also be used to manipulate people into thinking and acting a certain way could be related to your current situation? Maybe those tools shouldn't have been available to everyone, including your political adversaries?
But hey, glad you're enjoying it over there.
This is not really advertising, but it’s not really a problem either. People expect you to promote your own products and take it with the grain of salt they should. Besides, there are only so many channels you can possibly control.
> nor when I promote my friends products, whether I disclose it as promotion, or disguise it as my genuine unaffiliated opinion. Sometimes it really is a genuine opinion!
Sure. Maybe this is advertising that slips through. If all were down to is people advertising their friends’s products for no money then we would have eliminated 99.99% of the problem.
Further, if you have a highly influential channel, the cost of promoting a non genuine opinion about a friend’s product would almost certainly hurt your reputation, providing a strong disincentive to do such a thing.
Similar thing happened with Amazon recently. They copied bestsellers and promoted their own products in their store leading to death of other companies. Now you are just making this loop in steroids. All the small companies would be forced to be sold to companies with eyeballs like Meta and Google.
But this is not the vast majority of 'advertising' or where advertising causes so much harm. A single individual has much less power to manipulate a single other individual, let alone thousands of other individuals. It takes millions of dollars to hire people with specialized marketing skills to do that.
Isn’t it? You receive money when people buy your product because of your advertising.
The line is absolutely not clear.
Is ABC allowed to run commercials for its own shows?
ABC is owned by Disney. Is ABC allowed to run commercials for Disney shows? Is it allowed to run commericals for Disney toys?
Can ABC run commercials for Bounty paper towels, in exchange for Bounty putting ads for ABC shows on its paper towel packaging?
Literally no money is being exchanged so far.
I'm familiar with a lot of gray areas that courts regularly have to decide on. But trying to distinguish advertising from free speech sounds like the most difficult free speech question I've ever come across. People are allowed to express positive opinions about products, and even try to convince their friends, that's free speech. Trying to come up with a global definition of advertising that doesn't veer into censorship... I can't even imagine. Are you suddenly prevented from blogging about a water bottle you like, because you received a coupon for a future water bottle? Because if you use that coupon, it's effectively money exchanged. What if your blog says you wouldn't have bothered writing about the bottle, but you were so impressed with the coupon on top of everything else it got you to write?
You can argue over any of these examples, but that's the point: you're arguing, because the line isn't clear.
> Can ABC run commercials for Bounty paper towels, in exchange for Bounty putting ads for ABC shows on its paper towel packaging?
I was with you until this one
Under both IRS and GAAP rules, that's equivalent to money changing hands. So in a hypothetical "no money for advertising" world, that would be over the line.
A network of TV stations could cross-promote across all stations. Yes, that would be unfair, but no more unfair than the current situation where whoever has more money can have their ads seen everywhere. Fairness between companies isn't the goal, it's less manipulation and noise for the rest of us.
There's an example of a TV station that already has to follow these rules: the BBC.
One other example I was thinking was product placement. Are these characters eating pizza? Or is it Pizza Hut®™ pizza?
Well, not if they pay employees to do it. Except that shows aren't products, they're services, so they'd be exempt from this proposal.
What does that mean? What's a service in this definition? Surely not in the normal definition of a "service", as in health care or tech? Like is a movie a service too?
Or do you just mean something you get for free because it's a show on their own channel? What if you had to pay for shows ala carte?
A show isn't made of matter. If you pay for it, you can't take possession of it or resell it later. If you, the buyer, aren't available at the time that it is provided, you get nothing of value out of the deal. These are attributes of services like surgery or internet connectivity, not products like antibiotics and computers. ("Health care" and "tech" are too vague to be useful.)
Getting things for free is not, as you imply, a usual attribute of services.
So that would exclude:
- listing your house, or car in the classifieds
- buying a sign for your business (ad discussed in other posts)
- buying a garage sale sign
- buying a for sale sign, or flyers for your house for sale
- paying a realtor to sell your house
- paying a reporter or professional reviewer to write a review. Even if they are paid by a newspaper/magazine/consumer report site, money exchanged hands for something that promotes a product.
- distributing a catalog
- paying a cloud provider or VPS provider or website hosting service to host a website that promotes your product
Also, what exactly constitutes a "product"? Does a service count? If not, that is a pretty big loophole. What about a job position? Or someone looking for employment?
And finally, advertisement in some form is kind of important for making customers aware your product exists. Word of mouth isn't very effective if you don't have any customers to begin with. I would expect removing all advertising to have a chilling effect on innovation and new businesses.
To be clear, I think the current advertising environment is terrible, and unhealthy, and needs to be fixed. But I think that removing all advertisement would have some negative ramifications, especially if the definition of an ad is too simplistic.
Since we're coming up with hypothetical laws and loopholes, here is a simple addendum to my original argument:
- Only applies for companies, and only to those with more than $100,000 ARR.
There. That avoids penalizing most of the personal advertising scenarios you mentioned. Since laws are never a couple of sentences long, I'm sure with more thought we'd be able to find a good balance that prevents abuse, but not legitimate use cases for informing people about a product or service.
Again, the goal is not to get into philosophical discussions about what constitutes advertising, and banning commercial speech, or whatever constitutional right exists. The goal is to prevent companies from abusing people's personal data, profiling them, selling their profiles on dark markets, allowing mass psychological manipulation that is threating our democratic processes, and in general, from corrupting every communication channel in existence. Surely there are ways of accomplishing this without endless discussions about semantics and free speech.
But, as I've said in other threads, this is all wishful thinking. There is zero chance that the people in power who achieved it by these means will suddenly decide to regulate themselves and kill their golden goose. Nothing short of an actual revolution will bring this system down.
> And finally, advertisement in some form is kind of important for making customers aware your product exists.
Agreed. In the olden days before digital ads, product catalogs worked well. Companies would buy ad space in specific print media, and consumers interested in buying a product would consult the catalog for the type of product they're looking for. Making ads pull rather than push solves this awareness problem proponents of advertising deem so important. The reason they prefer the push approach is because it's many times more profitable for all involved parties. The only victims in this system are the people outside of it. The current system is making a consumer of everyone every time they interact with any content, when the reality is that people are only consumers when they're actively looking to buy something. Most of the time we just want to consume the content we're interested in, without being sold anything. It's the wrong approach, with harmful results, and the only reason we stuck with it is because it's making someone else very rich. It's absolute insanity.
Listing a house for sale on an agent’s website: not advertising.
Promoting that listing or the agent on the home page of a local news site: advertising
etc…
Some cases will be harder, all are decidable. We are talking about law not code, so there’s no need for a perfect algorithm, the legal system is designed precisely to deal with these sorts of question.
According to the definition given, if the intent is to "promote a product", and money changed hands it is.
It also meets websters definition of advertising:
> the action of calling something to the attention of the public especially by paid announcements
Zero difference from hiring a TV channel to promote your product, on their channel, to sell it.
Which is why trying to define advertising in a way that bans it is not simple at all.
GP says "Publishing factual information in a place people expect to find it is not advertising."
OK. Now the realtor adds a blog. They start publishing news about the real estate business. With listings mixed in. Congrats, you've got a newspaper with ads for homes. Are you ready to say the realtor can't publish news? Isn't that censorship?
Also, home listings aren't "factual". They're promotional. They focus on pros and omit cons. They have photos that hide the ugly parts. They're ads for homes, period.
Let's say I have a journal. It costs money to subscribe. It covers a topic that many college students also study.
Can I give the school a free copy? Can I give the teachers one? Can I give the students one? Is this advertising? When does the amount of "value" become offensive?
> surfacing the dark data broker market and banning it altogether.
This is why this has become a modern problem. I can live with erring on the side of free speech when it comes to advertising, but there is no side to err on when it comes to analytics and targeting.
It's fine if everyone here wants to fantasize about some alternative system, but "we make advertising illegal" is not something that can happen in our system of governance.
And while I'm inclined to believe not everyone should have free speech, I'm also aware that denying it is authoritarian.
The New York Times Company can say anything they want about anything, and especially political candidates.
It is not. It never is. But that is not a big problem.
Around the boundary cases there will be injustice and strife. But only around the boundary cases.
We deal with this all the time in our societies. Some societies are better at it than others
"The perfect is an enemy of the good"
Studio Ghibli made ~$220m on Spirited Away. What if they made $2.2T, is the quality going to go up, or down? And, would there be less ads, if no one made even $2.2 on them?
What's the connection between adverts and the amount of money Ghibli made on their best-loved movie?
Hmm, maybe none, maybe you're using Ghibli as a metaphor for products that make money through adverts. And maybe the implied answer to the next question is that their next movie, The Cat Returns, would have been higher quality if they had made even more money on Spirited Away. So what you could be saying is that crippling the ad industry would lead to lower quality products, without even much reducing the number of (less effective) adverts that get made.
That's one way to read what you said, but I feel like I got it wrong.
People getting paid to do things do worse than otherwise[1]. They do better when not paid. The quality of work often gets worse when they get more. It's well established. As counterintuitive as sometimes it seem to be.
What I'm essentially saying is, if you think people are right now getting paid to do something bad to the society(e.g. ads), you might want to keep them hooked and tied to the money and not to something else, like advertising for its own sake.
Fear the work of unpaid ad execs! They won't stop making adverts, it's what they live for, money or no money! The adverts will continue to be made, but now they will be made for love, and they will be extremely high quality! And if you think ordinary adverts are bad, wait until you see what adverts are like when they come from the heart!
Except that it is, and it's why social media is so important for marketeers; the best kind of advertising is word-to-mouth, so generating discourse about products is big business.
Anyway, without strict legislation and tight controls on social media / chat / RL, how would you know whether they would be getting paid or not?
It's a legal and / or philosophical conundrum, not to mention even more of a legal whack-a-mole than it already is.
So if I paint my store front's sign myself, I'm good, but if I pay a signwriter to paint it, it's illegal?
I guess I better become "friends" with a signwriter, so that they don't mind making a sign or two for me "for free". And so that I don't mind giving them a widget or two from my store sometime in the future.
Or is it money exchange with sign manufacturer? In this case are outdoor signs OK if owner personally made them?
I suppose the sign itself must be paid for... but many eateries are using the same signs for menus, so if owner re-purposed one of the menu signs, is there money involved? Or does owner have to dig in garbage bins to find the blackboard for free? What about writing messages straight on the wall? What about printing signs on the printer your own and taping them to the wall?
Now, don't get me wrong, I think it would be an overall improvement if those professionally-made outdoor signs get replaced by artisanal handwritten (or at least handmade) ones, but I don't think that this is what the original idea was about.
[0] https://www.shutterstock.com/image-photo/text-written-on-cha...
Trying to ban all advertising of course wouldn’t get anywhere (especially under the current SCOTUS), and the article’s author clearly hasn’t really thought through the implications. But there is a legal door that is ajar, in the Central Hudson test, and could potentially be widened by arguing that some classes of today’s advertising are against the public interest; the First Amendment is already not blanket covering all commercial speech.
Meanwhile, even the original Central Hudson test --- if commercial speech concerns lawful activity and isn't misleading, the government (1) needs a substantial interest and (2) must narrowly tailor the restriction --- was inhospitable to the sentiment in this blog post. But Central Hudson has as I understand it gotten more restrictive, not less; for instance, Sorrell, which was a bipartisan decision, applies heightened scrutiny to regulations under Central Hudson.
You can keep cigarette ads out of Highlights for Kids. But you're not going to be able to keep Nike from buying up ad inventory, and you'll certainly not be able to regulate political and cause advertising (and "propaganda").
The purpose of "free speech" is to allow the spread of ideas.
The purpose of advertising is to spread an idea.
They are different things.
Yes, the purpose of "free speech" is to allow the spread of ideas. The purpose of any particular piece of speech (a book, a pamphlet, a poster, a sign, a rally, a concert, anything) is to spread an idea. The idea in that particular piece of speech.
Do you want to preserve free speech but ban speech that tries to spread an idea? Your comment would be banned because you're trying to spread that idea.
Commercial speech is a legal term for speech that promotes commerce [1].
Let's consider toomim's three examples: "would you like to try a rosé with that dish? It pairs very well together," giving out free samples, and putting a sign up on your business that says the business name.
The first case seems like it would straightforwardly be illegal under your proposal if the waiter is an employee (or contractor) who gets paid by the restaurant, because the restaurant is exchanging money with the waiter in order to promote the rosé, which is a product. It would only be legal if the waiter were an unpaid volunteer or owned the restaurant.
The second case seems like it would straightforwardly be illegal under your proposal if the business had to buy the free samples from somewhere, knowing that it would give some of them out as free samples, because then it's exchanging money with its supplier in order to promote its products (in some cases the same product, but in other cases the bananas and soft drinks next to the cash registers, which people are likely to buy if you can get them into the store). Also, if one of the business's employees (or a contractor) gave out the free samples, that would be exchanging money with the employee to promote a product. You'd only be in the clear if you're a sole proprietor or partnership who bought the products without intending to give them away, changed your mind later, and then gave them away yourself rather than paying an employee to do so.
Putting up a sign on the business that says the business name is clearly promoting products, if the business sells products. Obviously the business can't pay a sign shop. If the business owner makes the sign herself, that might be legal, but not if she buys materials to make the sign from. She'd have to make the sign from materials unintentionally left over from legitimate non-advertising purchases, or which she obtained by non-purchase means, such as fishing them out of the garbage. However, she'd be in the clear if her business only sells services, not products.
A large blanket loophole in the law as you proposed it is that it completely exempts barter. So you can still buy a promotional sign from the sign shop if you pay the sign shop with something other than money, such as microwave ovens. The sign shop can then freely sell the microwave ovens for money.
In this form, it seems like your proposal would put at risk basically any purchase of goods by a product-selling business, except for barter, because there is a risk that those goods would be used for premeditated product promotion. Probably in practice businesses would keep using cash, which would give local authorities free rein to shut down any business they didn't like, while overlooking the criminal product-promotion conspiracies of their friends.
So, do you want to propose some legal language that is somewhat more narrowly tailored? Because a discussion entirely based on "I know it when I see it" vibes is completely worthless; everyone's vibes are different.
The first case is legal because waiter gets paid by the restaurant to serve meals, not to promote the specific brand of rose wine. Only illegal if the waiter has another, secret contract with the wine manufacturer to “recommend” specific wine.
The other two cases are legal because the money exchanged in order to receive goods. The fact the goods are then used to promote something is irrelevant.
Similarly, a man purchasing physical stuff is giving money in exchange for the goods as opposed to advertisement services. Classic contract of sale of physical goods, nothing even slightly ambiguous.
It’s the same with ordering a sign. “Exchanging money in order to promote a product” doesn’t happen because manufacturing the sign is not a promotion. To promote something using a sign, you would need to post the sign in a publicly visible place. Manufacturing a sign and giving it to your client in private doesn’t promote the product shown on the sign.
That said, after thinking about it for a few more minutes, I can think of one simple addendum to my initial criteria. I wrote about it here[1], so I won't repeat myself.
It's asinine that this discussion is taken to extreme ends. We don't need to ban all forms of advertising and get into endless discussions about semantics and free speech in order to stop the abuse of the current system. There is surely a middle ground that does it in a sensible way. The only reason we don't fix this is because the powers that be have no incentives to do so, and the general population is conditioned and literally brainwashed to not care about it.
If you can't figure out how to express what you want in such a way that it doesn't immediately collapse upon the most casual attempt at critical thought, the problem probably isn't that the population is brainwashed. It's probably that what you want is to eat your cake and still have it, a logical contradiction that could never exist in any possible world.
You seem to think that the law is something that can be delegated to the lawyers. But in fact the law balances conflicting interests. If you don't participate in defining it, your interests won't be taken into account. A law written by lawyers without outside input will only serve the lawyers' interests, not yours.
If you can't see how the current system is harming not just individuals, but the stability of governments and our democratic processes, and the role of the advertising industry in all of this, then nothing I nor anyone else says can convince you otherwise.
You seem more interested in scrutinizing hastily put together arguments by laypeople on an internet forum, than acknowledging the issues put forth, and the fact that fixing this deeply rooted problem will require multi-faceted solutions over a very long period of time.
And for that reason, I'm out.
