The decision to stopcarrying certain types of online ads prompts questions.
When Google decided in Mayto stop accepting online ads for short-term, ultra-high-cost personal loansknown as payday loans, some people wondered whether the company was acting morelike a publisher exercising editorial control than a supposedly neutral searchengine.
Now that Google’s policy hasgone into effect, it’s worth asking: To what extent should the company be agatekeeper, judging which online ads are okay and which are not? And if theworld’s largest Internet search engine is going to be selective about acceptingads, where does it draw the line?
The same questions could beapplied to Microsoft and Yahoo, which refuse to carry ads for certain types ofsensitive content (but still advertise payday loans). Baidu, the world’ssecond-largest search engine, has been grappling with these issues sinceearlier this year, when its practice of promoting medical listings withoutvetting them sparked outrage over a tragedy: a young man with cancer died afterreceiving an ineffective treatment from a hospital he found through a Baidu ad.The outcry prompted an investigation by China’s Internet regulator, whichordered Baidu to review its ads and remove any that promote unlicensed medicalproviders.
University of Maryland lawprofessor Frank Pasquale says Google has tried to have it both ways: sometimesit portrays itself as a simple utility and a mere conduit of its customers’ads, but other times it presents itself as a content provider that can andshould exercise control over the ads it shows.
“Whenever Googleis accused of abetting or enabling copyright infringement or defamation, itsays, ‘We’re just [connecting people] like the phone company does, and youwouldn’t sue the phone company over this,’” says Pasquale. “But when peoplesay, ‘If you’re a common carrier [utility], you should take all ads,’ Googlewill say, ‘No, we’re like a newspaper and we should have carte blanche overwhat we publish.’”
With payday loan ads, Googleis characterizing itself as the watchful online guardian. The company has saidit banned the ads to protect its users because “research has shown that theseloans can result in unaffordable payment and high default rates.” (Googledeclined to comment for this story beyond saying that it constantly reviews itsAdWords policies and updates them ”when necessary.”)
Google also seems to havebeen influenced by advocacy from a large coalition of civil rights, digitalrights, and financial reform organizations. In late 2015, the LeadershipConference on Civil and Human Rights and other groups sent Google reportsdetailing abuses that often accompany payday loans—among them fraud,unauthorized transactions, and long-term indebtedness. “We said, ‘This is aproblem, and we want to talk to you about this,’” says Alvaro Bedoya, theexecutive director of Georgetown Law’s Center on Privacy & Technology, whoparticipated in the outreach campaign. “There were long conversations withGoogle and a lot of bringing this research to their attention over the courseof a couple of months.”
An ongoing inquiry intopayday lending by the U.S. government’s Consumer Financial Protection Bureaumay have further heightened Google’s interest in predatory lending practices.
Consumers might not realizeit, but Google—and other ad-supported search engines—have been making editorialdecisions about the types of ads they will carry for years. These companies wonthe right to reject ads they consider objectionable in 2007, when a Delawaredistrict court ruled that constitutional free-speech guarantees don’t apply tosearch engines since they are for-profit companies and not “state actors.” Thedecision cited earlier cases that upheld newspapers’ rights to decide which adsto run.
Google currently prohibitsads for “dangerous,” “dishonest,” and “offensive” content, such as recreationaldrugs, weapons, and tobacco products; fake documents and academic cheatingservices; and hate-group paraphernalia. Google also restricts ads for contentit deems legally or culturally sensitive, such as adult-oriented,gambling-related, and political content; alcoholic beverages; and health careand medicine. It may require additional information from these advertisers andlimit placement to certain geographical locations.
Legal experts aren’tuniformly comfortable with Google’s taking on this role. While the Universityof Maryland’s Pasquale supports Google’s decision to add online payday loans toits restricted list as a benefit to consumers, University of Connecticut lawprofessor James Kwak thinks Google is overreaching. Given the company’sdominance—it is estimated to have a 55 percent share of the $86.2 billionglobal market for search ads—Kwak thinks Google is essentially exercisingregulatory authority when it bans certain ads and should be subject to scrutinyon the grounds that it might be violating First Amendment protections on freespeech.
“The question is, ‘When doessomething have so much control over the dissemination of ideas that it shouldbe treated as part of the government?’” says Kwak. “This is a company withenormous power that’s using that power to affect other industries.”
Now that Google has agreedto ban a category of ads, partly on the basis of community advocacy, willpeople expect it to block other ads that cause public harm? And since Googlehas committed to policing its payday loan ads, shouldn’t it take responsibilityfor other potentially unethical ads that it runs?
Consider for-profit collegesand services for relief of student debt. Google has not instituted specialregulations for such ads even though both entities are widely believed tocapitalize on consumers’ confusion and hurt more people than they help.
Logan Koepke, an analyst atUpturn, a technology law and policy consultancy that published an influential2015 report about online payday loans, thinks Google’s decision may set aprecedent for consumer advocates to seek to shape companies’ ad policies.
Some people aren’tcomfortable with Google as the final arbiter on these topics. Kwak, for one,would like to see greater transparency surrounding such decisions. He suggeststhat Google hire a group of economists or social scientists to identifydeceptive products being advertised online, or perhaps work with the CFPB todetermine the most exploitative financial products.
Pasquale also favors someform of public or government scrutiny to ensure that such decisions are beingmade in the public interest and not for commercial reasons favoring Google.That’s relevant to the payday loan issue since some people have speculated thatthe ban will benefit LendUp, an online lender that describes itself as a“payday loan alternative” and is funded by Google Ventures, the investmentdivision of Google’s parent company, Alphabet.
LendUp has pointed out,though, that its ads will be subject to Google’s ad ban, just like those ofother lenders.
Bedoya understands whyGoogle’s clout and reach make people uneasy, but he says, “The reality is,these companies had tremendous power before this decision and will havetremendous power after it. The key is to encourage them to use their positionin a way that’s not harmful.”