Unethical and Unfair Advertising With No Laws or Rules Against It…So That Makes It OK, Right?

Justice Holmes warned about people like this.

From Wisconsin we have a perfect example of how new technology creates opportunities for the unethical to find new ways to exploit it, uninhibited by either basic fairness or formal ethics rules that were written before the technology was available.

The Wisconsin law firm Cannon & Dunphy purchased the names of the two named partners of their biggest competitor in personal injury law, the firm Habush, Habush & Rottier, for a sponsored link, meaning that  every search for “Habush” or “Rottier” produces an ad for Cannon & Dunphy at the top of all the search results.  incensed that their names were being used to promote their competitor, Robert L. Habush and Daniel A. Rottier sued, alleging a breach of privacy and a misuse of their publicity rights. Milwaukee County Circuit Judge Charles Kahn Jr. rejected the suit, holding that purchasing a competitor’s name as an advertising key word on the Internet is reasonable commercial use. He determined that Cannon & Dunphy’s free speech rights trumped Habush and Rottier’s privacy rights, noting that the ad Cannon & Dunphy bought on Habush and Rottier’s names didn’t actually mention them. “The ‘Habush’ or ‘Rottier’ names do appear near the sponsored link; however, there is nothing on the link indicating endorsement of the defendants by the plaintiffs in any way,” the judge wrote.

The judge suggested the tactic might be unethical..gee, ya think?  He compared the strategy to putting your billboard next to your biggest competitor’s billboard, another example of a judge struggling, and failing, to find a good analogy between the Internet and regular, old, boring reality. As Forbes tech blogger Kashmir Hill correctly points out, the Cannon & Dunphy trick is more like putting a billboard in front of your competitor’s advertisement, blocking it from potential customers’ sight.

[Update: When I first posted this article, I assumed that the unethical nature of the tactic was self-evident. Clearly I was wrong, based on the comments, so let me elaborate.  1) Search engine results are more valuable in direct proportion to their positioning. When you search for "Habush" on Google, the link for Cannon & Dunphy comes up first, ahead of the firm you were searching for. Being first in line is a lot more like being in front of a billboard than being next to a billboard, which is equal status.  2) Someone sing my name to advertise a product that is in competition with me is unfair, and violates clear Golden Rule standards. It is like buying the right to tattoo  the name of my competitor on my forehead when I didn't even know you could buy the space on my forehead. If someone searches for "Habush," they should get links related to Habush, not be directed, first and foremost, to a link that is anti-Habush. 3) Thus the device is misleading and unfair. "Habush" has literally nothing to do with the other firm, yet the positioning of the search results suggest otherwise.  The initiator of the search looked for the name of a specific attorney or firm due to word of mouth, reputation or advertising, and the competing firm, which was responsible for none of these things, is nonetheless deriving the benefits of them. 4) The practice is, in short, parasitic. Are parasites unethical? I think so.]

The judge wrote, “The time may come when a legislature, regulatory board or supreme court determines that the conduct at issue in this case is deceptive and misleading and therefore improper.” “But,” he continued,  “no such body has yet drawn this conclusion.” That’s true, because nobody thought lawyers would be so crass and shameless as to  use searches for their competitors to draw traffic to a website.

Yes, nowhere in the Wisconsin Rules of Professional Conduct is there a provision stating that this kind of advertising is unethical. Of course, ethical lawyers choose not to behave unethically because they are ethical, not because they are wary of bar discipline. Like all ethics rules and many laws, the legal ethics codes are needed to prevent unethical conduct by professionals whose attitude is, “If there isn’t a rule against it, then it’s OK to do it.”  Jurist Oliver Wendell Holmes Jr. had a term for individuals who think this way, and it was “The Bad Man” —someone whose conduct isn’t governed by a sense of right and wrong, but by what is prohibited or allowed by authorities. The Internet and the World Wide Web is nirvana for Holmes’ bad men…as Habush and Rottier have learned to their sorrow.

4 Comments

Filed under Business & Commercial, Etiquette and manners, Law & Law Enforcement, Science & Technology, The Internet

4 responses to “Unethical and Unfair Advertising With No Laws or Rules Against It…So That Makes It OK, Right?

  1. Tim LeVier

    Disagree. I haven’t given it much thought yet, but my reaction is that if someone does a Google search for Sony Televisions and Panasonic Televisions comes up as a Sponsored link, I don’t see the problem.

    The public is (or should be) aware that a couple sponsored links precede the relevant results. If someone is deliberately searching for “Habush personal injury” and they get a relevant link for Habush and a sponsored link for a competitor, isn’t the consumer served better by having multiple options?

    I know you wrote your article from a lawyer’s perspective, but I’m thinking about the ethics of squashing competition and harming the consumer. On that front, I think your argument fails.

    • No, from a lawyer’s perspective, the judge is right. I’m looking at it from an ethicist’s perspective.

      They can buy a link on “personal injury law”—the consumer can find them. Buying a link on a specific named lawyer is an attempt to intercept a contact. If the Josephsen Institute jumps ahead of “Jack Marshall, ethicist” in a Google search, I’m going to be ticked off. That won’t happen, of course, because the Institute is ethical. I think this is a lot like the “Santorum” issue.

  2. As Forbes tech blogger Kashmir Hill correctly points out, the Cannon & Dunphy trick is more like putting a billboard in front of your competitor’s advertisement, block it from potential customers’ sight.

    Your billboard analogy (which isn’t mentioned in the linked article, as far as I can tell) makes no sense at all. They’re not blocking potential customers from seeing the search results for Habush (which would be unethical, I agree); they’re just making their own ad appear alongside the search results for Habush.

    Nowhere in your post do you explain why what they did was unethical. I wish you would explain. I’m not trying to be dense — I honestly don’t understand what your rational is.

  3. Barry, 1) Search engine results are more valuable in direct proportion to their positioning. When you search for “Habush” on Google, the link for Cannon & Dunphy comes up first, ahead of the firm you were searching for. Being first in line is a lot more like being in front of a billboard than being next to a billboard, which is equal status. 2) Someone sing my name to advertise a product that is in competition with me is unfair, and violates clear Golden Rule standards. It is like buying the right to tattoo the name of my competitor on my forehead when I didn’t even know you could buy the space on my forehead. If someone searches for “Habush,” they should get links related to Habush, not be directed, first and foremost, to a link that is anti-Habush. 3) Thus the device is misleading and unfair. “Habush” has literally nothing to do with the other firm, yet the positioning of the search results suggest otherwise. The initiator of the search looked for the name of a specific attorney or firm due to word of mouth, reputation or advertising, and the competing firm, which was responsible for none of these things, is nonetheless deriving the benefits of them. 4) The practice is, in short, parasitic. Are parasites unethical? I think so.

    Honestly, I didn’t go into great detail about why using someone name against him is unethical because I assumed it was obvious. I still do. But I’ll add some of these comments to the post.

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