Towards a Bill of Rights for Online Advertisers

As small businesses move online, they deserve protections at least as strong as what they've enjoyed for decades in traditional advertising channels.
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This week hundreds of policy makers, legal professionals and advertisers gather in Washington, DC for the hundredth anniversary of the Association of National Advertisers (ANA). We gather not only to celebrate a century of achievement, but also to shape the future of advertising.

These days, most advertising growth is occurring online, and for good reason: Online advertising presents remarkable efficiencies including better targeting, improved measurement, and increased return on investment. Yet there are challenges, particularly when networks of intermediaries place ads through convoluted relationships, and all the more so when small advertisers cannot effectively negotiate terms dictated by advertising powerhouses. The result is a troubling mess of ads gone wrong - advertisers charged in ways they didn't fairly agree to, and on terms they didn't meaningfully accept.

But advertisers, legal experts, and policy makers can prevent online advertising from becoming a wild west. I propose five specific rights advertisers should demand as they buy online placements:

  1. An advertiser's right to know where its ads are shown. It is nonsense to pay for ad space without knowing where the ad will appear; sites vary too much in user quality and context. Even for "blind buys," advertisers should get enough information to determine whether a given site qualifies to show an ad. Anything less undermines accountability - inviting fraudulent sites to attack advertisers' budgets. And with all manner of fraud - from spyware pop-ups to invisible banners to adult sites slipping into "brand-friendly" networks - advertisers need to be wary.

  • An advertiser's right to meaningful, itemized billing. Clear records are crucial to protect advertisers from accounting games. Otherwise, ad networks can claim "We already credited you for those clicks," knowing that advertisers cannot prove otherwise.
  • An advertiser's right to use its data as it sees fit. Campaign configuration details, such as keywords and targeting, are a sophisticated advertiser's crown jewels. Same for records of campaign performance. Advertisers should be able to retrieve and analyze this data whenever and however they choose. Yet some ad networks impede data portability in an attempt to increase their share of advertisers' spending.
  • An advertiser's right to enjoy the fruits of its advertising campaigns. When a user clicks an ad, the advertiser pays fair value to reach that user. But in a world of behavioral targeting, it's all too easy for a network to resell that same user to the advertiser's direct competitor. Click one airline's ad, and a network may conclude you're in the market for travel - then show ads for competing carriers. That's a poor value for the advertiser whose spending sparked the targeting.
  • An advertiser's right to resolve disputes fairly and transparently. Ad networks generally write the contracts that govern their dealings with advertisers. Enjoying the power of the pen, they tilt contracts in their favor - disclaiming obligations to place ads anywhere in particular, and denying responsibility for fraud, even when they know about it and fail to take action. At face value, these contracts purport to grant networks effective immunity from advertisers' complaints. But advertisers wouldn't accept such one-sided provisions in any other procurement context, and they need not be so lenient here.
  • Impingements on these rights are particularly troubling for their effects on small businesses. Few small business can afford to hire lawyers to pursue their interests. And small businesses lack the purchasing power to negotiate their way out of unwanted placements or harsh contract terms. As small businesses move online, they deserve protections at least as strong as what they've enjoyed for decades in traditional advertising channels. These rights would be a valuable step forward.

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