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Is Cloaking Deceptive Advertising? Not Necessarily

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Search Marketing Techniques, Deceptive Advertising Laws & Other Laws from Alan Perkins at Search Engine Guide looks at how laws about deceptive advertising might be applied to search marketing. Alan's long argued that cloaking could be considered deceptive advertising, and he tries to build that case here -- the deception being that the search engine itself was being deceived about the real relevancy of a page.

He cites the FTC action over a pagejacking scam in 1999 as one extreme example of deception being found in a legal instance. I agree with that (and my own write-up of that case is here, FTC Steps In To Stop Spamming). Alan does make clear that search spam itself is not necessarily the same as deception from a legal perspective. But he does conclude specifically that cloaking content with the intent of getting a better ranking is deceptive advertising:

So, those search engine spamming techniques that involve delivering the same content to searchers and search engines, such as hidden text or single pixel transparent links, do not constitute deceptive advertising. However, those techniques that involve delivering different content to searchers and search engines constitute deceptive advertising if the intent and result of the technique is a preferable placement.

I completely disagree. First, I don't know that getting organic listings in a search engine would be considered "advertising" under US laws, much less those of other countries. In addition, if what was promised in the search listing is generally the same as what someone gets when they arrive at the page, it's hard to argue consumer deception.

But the search engine itself was deceived! Maybe, but that doesn't mean laws about deceptive advertising were violated. And search engines get deceived about things all the time, including when they naturally fail to index pages properly or assign them a better ranking because the page themselves are not necessarily search engine friendly.

In fact, that's one reason that Google itself allows approved cloaking, as I've written before. Without allowing this, it can't properly index some content.

It's also why I find the entire argument over cloaking to be so tiresome to the point I may no longer even comment on articles about it in the future. Cloaking is not necessarily spam or misleading, as I wrote to great depth in my Ending The Debate Over Cloaking article of Feb. 2003.

If cloaking alone (independent of WHAT is being cloaked) were spam and misleading, then Google wouldn't allow it all all, in any circumstances, nor would Yahoo and others that accept XML feeds allow that form of cloaking. Cloaking is simply a method of feeding content to a search engine. How that content is described to a consumer and what ultimately is delivered when they arrive at a page after reading a listing is where you determine deception.

Did you promise "kids internet games" as with the 1999 pagejacking case and instead deliver up porn? That's deceptive, regardless of whether you cloaked, meta refreshed or whatever. Did you promise games and actually deliver them? Then how you gained the listing isn't likely deceptive from a legal point of view. Deception in getting the ranking will remain the sole jurisdiction of the search engine itself (and more about that in my past Spam Rules Require Effective Spam Police article)

Later, I'll be writing about new page-specific markup that Yahoo is proposing that were raised at the Indexing Summit we held at SES New York (for some fast details, see our Indexing Summit - SES NYC 05 forum thread with live coverage of that). This markup would allow portions of a page seen by humans to be ignored by spiders -- effectively, a form a cloaking.

There are good reasons for doing it, but if the change comes, it's going to once again move forward the definition of cloaking. More important, it's going to further move forward the fact that search engines are no longer (and haven't for some time) only comparing pages to each other that have been spidered exactly as seen by humans. They aren't, nor should they, and nor would doing so somehow restore some type of "level playing field" that never existed in the first place.

Want to discuss? Please join our forum thread, Deceptive Advertising in Search Results.

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