Recently, the 4A’s and ANA jointly released the following statement to help address a serious issue within the media and advertising industries. The 4A’s strongly encourages our members to focus on correcting this situation.
The Association of National Advertisers (ANA) and the American Association of Advertising Agencies (4A’s) strongly believe that U.S. advertisers must have confidence that their ads are not unintentionally providing financial support to, or otherwise legitimizing, “rogue” Internet sites whose primary and apparent purpose is to steal or facilitate theft of the intellectual property of America’s innovators and creators. U.S. advertisers must also have confidence that their corporate brands and images are not being harmed by association with such unlawful activity. In order to help address this complex problem, the 4A’s and ANA believe that our members should each commit to take affirmative steps to avoid placement of ads on such sites.
At the outset, we emphasize that this commitment is not intended to foreclose advertising on legitimate social media or user-generated content sites, even if infringing content occasionally appears on such sites. Rather, this commitment addresses rogue sites that are dedicated to infringement of the intellectual property rights of others, in that they have no significant, or only limited, use or purpose other than engaging in, enabling or facilitating such infringement. It is understood that in most instances such sites will initially — but not conclusively — be identified by intellectual property owners.
With respect to such sites, marketers and their agencies should seek to include conditions along the following lines in media placement contracts and insertion orders with ad networks and other intermediaries involved in their U.S.-originated digital advertising campaigns on both domestic and foreign Internet sites:
i. All such intermediaries shall use commercially reasonable measures to prevent ads from being placed on such sites;
ii. All such intermediaries shall have and implement commercially reasonable processes for removing or excluding such sites from their services, and for expeditiously terminating non-compliant ad placements, in response to reasonable and sufficiently detailed complaints or notices from rights holders and advertisers;
iii. All such intermediaries shall refund or credit the advertiser for the fees, costs and/or value associated with non-compliant ad placements, or provide alternative remediation.
The above language is provided for illustrative purposes, and individual members may adopt policies, guidelines and provisions that result in similar obligations, including the relevant provisions of the 4A’s/IAB Standard Terms and Conditions for Internet Advertising.
We acknowledge that our members are asked to make this commitment in the context of a highly dynamic and complex digital advertising ecosystem, and that inadvertent non-compliant ad placements will occasionally occur. While we encourage our members to take appropriate steps to safeguard their brands, this commitment is not intended to impose a duty on marketers or the advertising intermediaries with which they transact to monitor their advertising to identify rogue sites. Similarly, it is understood that knowledge gained in the course of implementing this voluntary commitment should not be used as the basis for any legal liability or loss of any applicable “safe harbor” from such liability.
At bottom, the critical point for ANA, the 4A’s and both associations’ members is this: we should not knowingly allow our businesses and brands to supply financial life-blood or lend a veneer of legitimacy to fundamentally illicit business models that threaten the jobs of millions of Americans in the creative industries and, ultimately, our national economic welfare.