Google Plays Gatekeeper with Advertisers

When Google decided in May to stop accepting online ads for short-term, ultra-high-cost personal loans known as payday loans, some people wondered whether the company was acting more like a publisher exercising editorial control than a supposedly neutral search engine.

Now that Google’s policy has gone into effect, it’s worth asking: To what extent should the company be a gatekeeper, judging which online ads are okay and which are not? And if the world’s largest Internet search engine is going to be selective about accepting ads, where does it draw the line?

The same questions could be applied to Microsoft and Yahoo, which refuse to carry ads for certain types of sensitive content (but still advertise payday loans). Baidu, the world’s second-largest search engine, has been grappling with these issues since earlier this year, when its practice of promoting medical listings without vetting them sparked outrage over a tragedy: a young man with cancer died after receiving an ineffective treatment from a hospital he found through a Baidu ad. The outcry prompted an investigation by China’s Internet regulator, which ordered Baidu to review its ads and remove any that promote unlicensed medical providers.

University of Maryland law professor Frank Pasquale says Google has tried to have it both ways: sometimes it portrays itself as a simple utility and a mere conduit of its customers’ ads, but other times it presents itself as a content provider that can and should exercise control over the ads it shows.

“Whenever Google is accused of abetting or enabling copyright infringement or defamation, it says, ‘We’re just [connecting people] like the phone company does, and you wouldn’t sue the phone company over this,’” says Pasquale. “But when people say, ‘If you’re a common carrier [utility], you should take all ads,’ Google will say, ‘No, we’re like a newspaper and we should have carte blanche over what we publish.’”

With payday loan ads, Google is characterizing itself as the watchful online guardian. The company has said it banned the ads to protect its users because “research has shown that these loans can result in unaffordable payment and high default rates.” (Google declined to comment for this story.)

Google also seems to have been influenced by advocacy from a large coalition of civil rights, digital rights, and financial reform organizations. In late 2015, the Leadership Conference on Civil and Human Rights and other groups sent Google reports detailing abuses that often accompany payday loans—among them fraud, unauthorized transactions, and long-term indebtedness. “We said, ‘This is a problem, and we want to talk to you about this,’” says Alvaro Bedoya, the executive director of Georgetown Law’s Center on Privacy Technology, who participated in the outreach campaign. “There were long conversations with Google and a lot of bringing this research to their attention over the course of a couple of months.”

An ongoing inquiry into payday lending by the U.S. government’s Consumer Financial Protection Bureau may have further heightened Google’s interest in predatory lending practices.

Consumers might not realize it, but Google—and other ad-supported search engines—have been making editorial decisions about the types of ads they will carry for years. These companies won the right to reject ads they consider objectionable in 2007, when a Delaware district court ruled that constitutional free-speech guarantees don’t apply to search engines since they are for-profit companies and not “state actors.” The decision cited earlier cases that upheld newspapers’ rights to decide which ads to run.

Google currently prohibits ads for “dangerous,” “dishonest,” and “offensive” content, such as recreational drugs, weapons, and tobacco products; fake documents and academic cheating services; and hate-group paraphernalia. Google also restricts ads for content it deems legally or culturally sensitive, such as adult-oriented, gambling-related, and political content; alcoholic beverages; and health care and medicine. It may require additional information from advertisers and limit placement to certain geographical locations

Legal experts aren’t uniformly comfortable with Google’s taking on this role. While the University of Maryland’s Pasquale supports Google’s decision to add online payday loans to its restricted list as a benefit to consumers, University of Connecticut law professor James Kwak thinks Google is overreaching. Given the company’s dominance—it is estimated to have a 55 percent share of the $86.2 billion global market for search ads—Kwak thinks Google is essentially exercising regulatory authority when it bans certain ads and should be subject to scrutiny on the grounds that it might be violating First Amendment protections on free speech.

“The question is, ‘When does something have so much control over the dissemination of ideas that it should be treated as part of the government?’” says Kwak. “This is a company with enormous power that’s using that power to affect other industries.”

Now that Google has agreed to ban a category of ads, partly on the basis of community advocacy, will people expect it to block other ads that cause public harm? And since Google has committed to policing its payday loan ads, shouldn’t it take responsibility for other potentially unethical ads that it runs?

Consider for-profit colleges and services for relief of student debt. Google has not instituted special regulations for such ads even though both entities are widelybelieved to capitalize on consumers’ confusion and hurt more people than they help.

Logan Koepke, an analyst at Upturn, a technology law and policy consultancy that published an influential 2015 report about online payday loans, thinks Google’s decision may set a precedent for consumer advocates to seek to shape companies’ ad policies.

Some people aren’t comfortable with Google as the final arbiter on these topics. Kwak, for one, would like to see greater transparency surrounding such decisions. He suggests that Google hire a group of economists or social scientists to identify deceptive products being advertised online, or perhaps work with the CFPB to determine the most exploitative financial products.

Pasquale also favors some form of public or government scrutiny to ensure that such decisions are being made in the public interest and not for commercial reasons favoring Google. That’s relevant to the payday loan issue since some people have speculated that the ban will benefit LendUp, an online lender that describes itself as a “payday loan alternative” and is funded by Google Ventures, the investment division of Google’s parent company, Alphabet.

LendUp has pointed out, though, that its ads will be subject to Google’s ad ban, just like those of other lenders.

Bedoya understands why Google’s clout and reach make people uneasy, but he says, “The reality is, these companies had tremendous power before this decision and will have tremendous power after it. The key is to encourage them to use their position in a way that’s not harmful.”

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