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.