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In Search of a Captive Audience


by Glen Emerson Morris
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Recently two girls were arrested and brief jailedin Perrysburg, Ohio for refusing to watch commercials included in Channel One broadcasts featured at many public schools. This resulted in the headline "TV or Jail" in the local newspaper. The case was complicated by split custody of the children, disagreeing parents, and less than imaginative school authorities, but, under any circumstances, the headline didn't look good for the advertising industry.

Advances in technology are offering advertisers new ways to get their messages before consumers, sometimes by simply giving them no way to avoid them. Captive audience situations are very tempting to advertisers, but it's important to remember that there's a very real downside to this approach; off-setting costs increase as the intrusion factor increases. Exactly where to draw the line is becoming an important issue for anyone advertising on the Internet, especially since the net offers numerous ways for advertisers to exploit, even briefly take over, consumer's computers.

Actually, hijacking consumer's computers to play commercials is already happening with other media. A recently published Star Trek adventure game was programmed to play a 6o second commercial each time the game was installed on a consumer's computer, whether the consumer wanted it to or not. The consumer was unable to play the game until the entire commercial finished. Adding insult to injury, the commercial turned out to be the best part of the program. The game was so badly designed it was largely unplayable. (One game magazine's review of it said the only thing on its pro side was that its manual was free of typographical errors.)

Aside from the questionable judgement of linking any forthcoming game to a certified lemon, the strategy of requiring any commercial to be run on a consumer's computer in order to install a game raises some serious issues. It's one thing to include extra commercials on install CDs that can be viewed at the option of the purchaser. It's something else to make the purchaser sit through commercials in order to use a game they've already paid for, especially since it ties up their resources (i.e. their computer) in order to play the commercials. Even the increasingly pervasive trailers included in VHS movies are susceptible to fast forward commands, and avoidable, though at a minor cost in time.

So, if it's possible to program a Website to play a thirty second ad each time a consumer logs on, and prevent the consumer from being able to shut it off in the process, is it ethical, or even legal, to do so? What about reprogramming a consumer's computer so it can't logon to your competitors Websites? Well, ethically it may be wrong, but legally speaking it's not clear. The extent to which consumers give up control of their computers when they log on to Websites really hasn't been legally determined yet.

Some cases are pending, though. AOL has been criticized, even sued, for some of its "captive audience" engineering practices. Once you've selected AOL as your primary Internet service provider, it becomes very difficult, sometimes impossible, to connect to another Internet service provider without reinstalling the computer's operating system. AOL has also been criticized for forcing subscribers to watch ads, and some consumer groups are already demanding compensation for lost time on their computer due to captive audience advertising.

Based on past experience, consumers may well win the legal fight against captive audience marketing strategies. In the last half-century, the law has tended to support consumer's right to privacy, at least to the extent they asked for it.

In 1950, the Supreme Court upheld a local ordinance against door-to-door salesmen, saying "It would be, it seems to us, a misuse of the great guarantees of free speech and free press to use those guarantees to force a community to admit the solicitors of publication to the home premises of its residents. We see no abridgment of the principles of the First Amendment in this ordinance."

In 1970 the Supreme Court ruled against an appeal by direct marketers saying "We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good'' ideas on an unwilling recipient. That we are often "captives'' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. See Public Utilities Commission v. Pollack 343 U.S. 451 (1952). The asserted right of a mailer, we repeat stops at the outer boundary of every person's domain."

Twenty years later, technology made possible entirely new ways to reach consumers, most of which fell outside the limitations of then current privacy laws. This time the media was the telephone instead of the mailbox, and the intrusion to the consumer came in the form of the telemarketing call, sometimes pre-recorded, or the updated form of junk mail, the junk fax. Some companies used these new methods to the extreme, and eventually public pressure made legal action unavoidable. The result was the Telephone Consumer Protection Act of 1991 (TCPA,) signed into law by President Bush, which limited the use of telemarketing and pre-recorded message calls, and largely banned junk faxes.

At some point in the future, it's likely that any advertising that arbitrarily takes over a consumer's computer will be illegal, just as junk faxes are illegal now, and for the same reason. Junk faxes consume resources the receiver has to pay for, and time on a computer has a price just as fax paper does, even if it is a little more difficult to calculate. Anyone expecting the Internet to remain free from government limitations on captive audience strategies is going to have to ignore a fair amount of history, and some very important lessons.





Copyright 1994 - 2010 by Glen Emerson Morris All Rights Reserved

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