When I was a journalism student, we discussed in-class not only what was possible or creative or fun, but what was ethical and responsible.
Later, as a law student, questions about professional ethics arose in every class. Aspiring lawyers must pass not only the bar exam, but also the MPRE, the multi-state professional responsibility exam.
You can’t become an officer of the court until you pass this exam. In fact, one of the things the exam tests you on, ironically enough, is advertising. Each state regulates this a little differently, but standards [PDF] usually include the following prohibitions:
- Ads can’t include paid testimonials or endorsements without disclosing that they are paid;
- Ads can’t use actors to portray judges, lawyers, or clients, portray fictitious scenes or events without disclosing the fictionalization;
- Ads can’t look like legal documents; and
- Ads can’t use meta tags or codes that, if displayed, would violate these other rules.
You break these rules, and you could lose your license to practice law.
Lawyers and reporters are better than us
I work in marketing and advertising. In the past 15 years, I never took a course in professional responsibility. I never saw an industry association’s code of professional conduct. Maybe it was hidden somewhere in the employee handbook, but it certainly wasn’t something we talked about or enforced.
In fairness, the American Association of Advertising Agencies (4As) publishes a Standards of Practice for its membership. These rules simply reflect laws enforced by the Federal Trade Commission (FTC).
The FTC’s requirements lay out what marketers (though notably, not their agencies) can and cannot lie about in advertising. The FTC regulates our clients with serious civil and criminal penalties. Meanwhile, the 4As asks agencies not to aid and abet clients, but the worst they can do is remove offending agencies from membership. Which isn’t even a little bit like losing your license to practice advertising.
Maybe that’s why we’ve become so blasé about behaving unethically. There’s no penalty. It’s just creative expression. It’s funny, it’s satire, it’s emotionally engaging. And besides, our clients approved it.
Today, we have the internet. It was supposed to be more transparent and measurable, for everyone. But each day we see the effects of an ad-supported industry that could benefit from a deeper discussion of ethics.
Here are a few examples.
A lot of Facebook’s analytics are dubious. Now, dubious stuff happens on the web all the time. But when marketers pay for intentionally dubious stuff, that’s fraud.
User experience designers debate the use of “dark patterns” that force users into doing what the designer wants, even if this is not in the user’s best interest.
We also have “dark algorithms.” Facebook ran an experiment on almost 700,000 users where they took away either all the good news or all the bad news, just to see how it would affect your mood.
Privacy groups objected and governmental agencies launched investigations. Not to be deterred, they’re influencing the vote and sharing your political proclivities with news and content providers. OkCupid ran an experiment in the way it finds matches for users.
Do experiments ultimately help these sites improve their services? Maybe. But should their users be test subjects in social experiments? That’s the ethical question.
The founder of OkCupid had this to say: “Guess what, everybody: if you use the Internet, you’re the subject of hundreds of experiments at any given time, on every site… That’s how websites work.”
No wonder people are turning to tools and services that protect their privacy and evade advertising.
Going all in on native
The New York Times announced in August that it has decided to “tone down” the way it discloses to readers which content is sponsored. Late last year the FTC was moved to hold a workshop on native advertising (formerly called sponsored content, paid content or “advertorial”).
Bob Garfield, host of NPR’s On the Media host and former Ad Age editor, had this to say: “With every transaction, publishers are mining and exporting a rare resource: trust. Those deals … will, in a matter of years, destroy the media industry: one boatload of shit at a time.”
When it comes to content people create or share on the internet, there’s a long history of confusion about our legal rights.
In April of this year, General Mills added language to its website telling consumers that they waived the right to sue if they downloaded coupons, joined any of their online communities, or entered a contest of sweepstakes (among other actions). They aren’t the only ones.
It’s not, strictly speaking, illegal and is part of a larger trend towards mandatory binding arbitration – which companies love because it keeps consumers complaining of fraud, defect or injury from ever seeing a judge or jury.
Quoting from The New York Times, Julia Duncan, director of federal programs and an arbitration expert at the American Association for Justice said, “Although this is the first case I’ve seen of a food company moving in this direction, others will follow — why wouldn’t you? It’s essentially trying to protect the company from all accountability, even when it lies, or say, an employee deliberately adds broken glass to a product.”
How can we get better?
There’s good news: The bar is set really low. We should start by publicly committing to the rules the FTC laid out for our clients, and the 4As advocated for agencies. We should advocate for those rules to our clients, rather than passing the liability buck to them.
Brand trust is something we’re all striving to build with our customers and on behalf of our clients. We can’t evade the law and lie to our users and expect that people will trust us. This is a time of constant disruption and customers can (and will) take their business elsewhere.
We shouldn’t wait for the FTC to regulate or fine us. We shouldn’t wait for consumers to be outraged. We shouldn’t wait to get fired or sued. We should lead.
Here are a few things our community can do:
- Require an ethics course in advertising, computer science and MBA programs.
- Train our new-hires on ethical standards, both within the company towards our colleagues and outwardly with our clients and customers.
- Require senior leadership in agencies and marketing departments to keep up on both the latest techniques and technologies, and their ethical implications.
- Conferences should host tracks on the ethical implications and responsibilities of marketing and design practices.
- Employ ombudsmen, ethicists, and governance experts to help craft and shape policy, and provide guidance when ethical quandaries arise.
- Publicize a marketing code of conduct akin to a consumer’s (or user’s) bill of rights.
Maybe then we won’t be at the bottom of the trust rankings alongside car salespeople and Members of Congress.