Is Google Enabling Illegal Ads That May Harm Children?

Google's Record

The allegations against Google are extremely serious and very troubling. This is not the first time it has been alleged that Google is profiting from illegal behavior.

In 2006, a lawsuit was filed and later withdrawn alleging that Google profited from child pornography. See, 'Suit Accuses Google of Profiting from Child Porn,' CNET. In 2009, Rosetta Stone sued Google and eventually reached a confidential settlement regarding allegations that Google illegally sold Rosetta Stone trademarks to third-party advertisers that linked to sites selling counterfeit software. See, 'Online Exclusive: Google Opts to Make a Deal in AdWords Spat with Rosetta Stone,' Internet Law & Strategy, Nov. 2012, .

Google has a proven track record of turning a blind eye to illegal ads on its platform. In August 2011, Google agreed to 'forfeit $500 million for allowing online Canadian pharmacies to place advertisements through its AdWords program targeting consumers in the United States, resulting in the unlawful importation of controlled and non-controlled prescription drugs into the United States.' See, 'Google Forfeits $500 Million Generated by Online Ads & Prescription Drug Sales by Canadian Online Pharmacies,' Justice.gov. According to The Wall Street Journal, Google's chief executive knew about the illicit conduct that led to the record forfeiture. See, 'Con Artist Starred in Sting That Cost Google Millions,' WSJ.com, Jan. 25, 2012 '(subscription req'd). The article reports that the U.S. Attorney for Rhode Island Peter Neronha stated: 'We simply know from the documents we reviewed and witnesses we interviewed that Larry Page knew what was going on.'

Issues Abroad

Google's alleged behavior of putting advertising profits ahead of its concern for users was also recently criticized in the United Kingdom. According to The Guardian, 'thousands upon thousands of people are paying wholly unnecessary fees to access basic services provided by the government.”See, 'Tackle the Google Adword Sites Charging Users for Free Government Services,' May 31, 2013. This appears to be occurring because Google is not doing enough to police its AdWords system. It took The Guardian's researchers, 'milliseconds ' to find a site in breach of Google's rules.' Id. While Google did remove one of the sites that The Guardian reported was fleecing UK consumers, 'the search engine continues to promote copycat sites, happily taking the revenue that they generate.' See, 'Google Adword: Time to Close the 'Rogue Sites' Loophole,' June 7, 2013. The problem of illegal content being easily accessible on Google's websites is so serious that UK Prime Minister David Cameron recently called out Google for not doing enough to protect children. See, 'Google Must Fight Spread of Online Child Abuse Images, Says David Cameron,' The Guardian, June 9, 2013.

Facebook recently announced that it blocks users in the Netherlands from seeing ads for online gambling to comply with the Dutch Betting and Gaming Act. See, 'Facebook Agrees to Pull Online Gambling Ads in the Netherlands,' SiliconRepublic.com, May 28, 2013. In May, LinkedIn updated its terms of service to ban the advertising of sexual services on its platform. See, LinkedIn's User Agreement, revised May 13, 2013. For more than 10 years, Google has been removing content from its French and German indexes that may conflict with local laws. See, 'Google Filters Sites in France and Germany,' InternetNews.com, Oct. 24, 2002. If Facebook and LinkedIn are able to implement programs that block ads for services or products that are illegal in some parts of the world why hasn't Google done more to protect its users? Is it because, according to Adweek, 95% of its revenues comes from advertising? See, 'Google Finally Crosses $50 Billion Annual Revenue Mark,' AdWeek.com, Jan. 22, 2013.

Advertising to Children

According to the Pew Internet Project report, 93% of all U.S. teens between the ages of 12-17 go online. See, 'Teen and Young Adult Internet Use.' In addition, 47% of parents are 'very concerned' about their child's exposure to inappropriate content through the Internet or cell phones. See, 'Parents, Teens, and Online Privacy.' Last month, the Digital Citizens Alliance'released 'A Report on How Google and YouTube Stand to Benefit When Bad Actors Exploit the Internet' that appears to demonstrate that Google is not doing enough to protect children. The report provides multiple recent examples where YouTube is exhibiting ads for illegal goods and/or services next to videos that appear to be targeted to children and/or teens. See, 'Digital Citizens Alliance Releases New Report on Google and You Tube.”

While some regulators, not only in the U.S. but also abroad, appear to be weighing whether television advertising regulations should be applied to online video platforms, it is apparent that more safeguards are needed to protect children from illegal ads that appear on YouTube and other websites. For example, in the UK, the Advertising Standards Authority (ASA) upheld a complaint against movie studio Lionsgate for posting a movie ad on YouTube because it contained 'some scenes [that] were inappropriate for children, and that YouTube account registration, at which time users supply their age, is not required to use the site.' See, 'YouTube Fails to Convince Ad Regulator the Web Safeguards Kids Like TV Does,' Paidcontent.org. Google's less than stellar record in monitoring its ecosystem for illegal ads may push regulators and/or lawmakers to over-regulate the Internet and stifle innovation.

Conclusion

Unless Google acts expeditiously to better police its digital properties, it would not surprise me if a coalition of state attorneys general commences legal action to protect children from the significant number of illegal ads that appear on Google's websites. To avoid a costly and drawn out legal quagmire that may not only affect its advertising business, but the entire digital advertising economy, it may be in Google's best interest to fully cooperate with the National Association of Attorneys General (NAAG) and take meaningful action that protects users from ads for illegal products and/or services.

Bradley S. Shear is a lawyer in Bethesda, MD, and an Adjunct Professor at George Washington University. A member of this newsletter's Board of Editors, he practices cyber and social media law, privacy and advertising law, and copyright and trademark law. Shear advises state and federal lawmakers around the country on digital media law and public policy issues. He can be reached at www.shearlaw.com.

Advertisements for counterfeit merchandise, illegal drugs, pornography, etc, have been on the Internet for years. Unfortunately, it appears some companies that have the ability to remove ads and/or links from their websites to illegal products and/or services may not be putting forth their best effort to do so. Refusing to properly address these issues may lead to major legal and financial consequences.

On his website recently, Mississippi Attorney General Jim Hood publicly asked Google to 'address issues on its [website] that are allowing users to obtain illegal and counterfeit goods, including dangerous drugs without a prescription.' See, 'Attorney General Hood Asking Google to Address Alleged Violations of Intellectual Property Rights.' According to Hood: 'On every check we have made, Google's search engine gave us easy access to illegal goods including websites which offer dangerous drugs without a prescription, counterfeit goods of every description, and infringing copies of movies, music, software and games.' Hood further stated: 'This behavior means that Google is putting consumers at risk and facilitating wrongdoing, all while profiting handsomely from illegal behavior.'

Google's response to Hood's allegations that it is not doing enough to stop the proliferation of ads for counterfeit goods has been called insufficient and inadequate and that its 'lack of meaningful action is unacceptable.' (See the series of letters and responses on Hood's website at www.agjimhood.com/images/uploads/forms/GoogleLetters.pdf.) According to the Associated Press, Hood has stated that Google's previous response was also 'evasive' and 'overly technical' See, 'Google Blasted for Persisting Online Drug Ads,' Mercury News, June 7, 2013.

Google's Record

The allegations against Google are extremely serious and very troubling. This is not the first time it has been alleged that Google is profiting from illegal behavior.

In 2006, a lawsuit was filed and later withdrawn alleging that Google profited from child pornography. See, 'Suit Accuses Google of Profiting from Child Porn,' CNET. In 2009, Rosetta Stone sued Google and eventually reached a confidential settlement regarding allegations that Google illegally sold Rosetta Stone trademarks to third-party advertisers that linked to sites selling counterfeit software. See, 'Online Exclusive: Google Opts to Make a Deal in AdWords Spat with Rosetta Stone,' Internet Law & Strategy, Nov. 2012, .

Google has a proven track record of turning a blind eye to illegal ads on its platform. In August 2011, Google agreed to 'forfeit $500 million for allowing online Canadian pharmacies to place advertisements through its AdWords program targeting consumers in the United States, resulting in the unlawful importation of controlled and non-controlled prescription drugs into the United States.' See, 'Google Forfeits $500 Million Generated by Online Ads & Prescription Drug Sales by Canadian Online Pharmacies,' Justice.gov. According to The Wall Street Journal, Google's chief executive knew about the illicit conduct that led to the record forfeiture. See, 'Con Artist Starred in Sting That Cost Google Millions,' WSJ.com, Jan. 25, 2012 '(subscription req'd). The article reports that the U.S. Attorney for Rhode Island Peter Neronha stated: 'We simply know from the documents we reviewed and witnesses we interviewed that Larry Page knew what was going on.'

Issues Abroad

Google's alleged behavior of putting advertising profits ahead of its concern for users was also recently criticized in the United Kingdom. According to The Guardian, 'thousands upon thousands of people are paying wholly unnecessary fees to access basic services provided by the government.”See, 'Tackle the Google Adword Sites Charging Users for Free Government Services,' May 31, 2013. This appears to be occurring because Google is not doing enough to police its AdWords system. It took The Guardian's researchers, 'milliseconds ' to find a site in breach of Google's rules.' Id. While Google did remove one of the sites that The Guardian reported was fleecing UK consumers, 'the search engine continues to promote copycat sites, happily taking the revenue that they generate.' See, 'Google Adword: Time to Close the 'Rogue Sites' Loophole,' June 7, 2013. The problem of illegal content being easily accessible on Google's websites is so serious that UK Prime Minister David Cameron recently called out Google for not doing enough to protect children. See, 'Google Must Fight Spread of Online Child Abuse Images, Says David Cameron,' The Guardian, June 9, 2013.

Facebook recently announced that it blocks users in the Netherlands from seeing ads for online gambling to comply with the Dutch Betting and Gaming Act. See, 'Facebook Agrees to Pull Online Gambling Ads in the Netherlands,' SiliconRepublic.com, May 28, 2013. In May, LinkedIn updated its terms of service to ban the advertising of sexual services on its platform. See, LinkedIn's User Agreement, revised May 13, 2013. For more than 10 years, Google has been removing content from its French and German indexes that may conflict with local laws. See, 'Google Filters Sites in France and Germany,' InternetNews.com, Oct. 24, 2002. If Facebook and LinkedIn are able to implement programs that block ads for services or products that are illegal in some parts of the world why hasn't Google done more to protect its users? Is it because, according to Adweek, 95% of its revenues comes from advertising? See, 'Google Finally Crosses $50 Billion Annual Revenue Mark,' AdWeek.com, Jan. 22, 2013.

Advertising to Children

According to the Pew Internet Project report, 93% of all U.S. teens between the ages of 12-17 go online. See, 'Teen and Young Adult Internet Use.' In addition, 47% of parents are 'very concerned' about their child's exposure to inappropriate content through the Internet or cell phones. See, 'Parents, Teens, and Online Privacy.' Last month, the Digital Citizens Alliance'released 'A Report on How Google and YouTube Stand to Benefit When Bad Actors Exploit the Internet' that appears to demonstrate that Google is not doing enough to protect children. The report provides multiple recent examples where YouTube is exhibiting ads for illegal goods and/or services next to videos that appear to be targeted to children and/or teens. See, 'Digital Citizens Alliance Releases New Report on Google and You Tube.”

While some regulators, not only in the U.S. but also abroad, appear to be weighing whether television advertising regulations should be applied to online video platforms, it is apparent that more safeguards are needed to protect children from illegal ads that appear on YouTube and other websites. For example, in the UK, the Advertising Standards Authority (ASA) upheld a complaint against movie studio Lionsgate for posting a movie ad on YouTube because it contained 'some scenes [that] were inappropriate for children, and that YouTube account registration, at which time users supply their age, is not required to use the site.' See, 'YouTube Fails to Convince Ad Regulator the Web Safeguards Kids Like TV Does,' Paidcontent.org. Google's less than stellar record in monitoring its ecosystem for illegal ads may push regulators and/or lawmakers to over-regulate the Internet and stifle innovation.

Conclusion

Unless Google acts expeditiously to better police its digital properties, it would not surprise me if a coalition of state attorneys general commences legal action to protect children from the significant number of illegal ads that appear on Google's websites. To avoid a costly and drawn out legal quagmire that may not only affect its advertising business, but the entire digital advertising economy, it may be in Google's best interest to fully cooperate with the National Association of Attorneys General (NAAG) and take meaningful action that protects users from ads for illegal products and/or services.

Bradley S. Shear is a lawyer in Bethesda, MD, and an Adjunct Professor at George Washington University. A member of this newsletter's Board of Editors, he practices cyber and social media law, privacy and advertising law, and copyright and trademark law. Shear advises state and federal lawmakers around the country on digital media law and public policy issues. He can be reached at www.shearlaw.com.