Comment by kragen
2 months ago
Maybe you should post a proposal for a law that's a little more specific than "is money being exchanged in order to promote a product? That's advertising." Then we can see if it is in fact possible to prevent 99%, or for that matter 50%, of the harm that comes from modern advertising, without outlawing other things.
Let's consider toomim's three examples: "would you like to try a rosé with that dish? It pairs very well together," giving out free samples, and putting a sign up on your business that says the business name.
The first case seems like it would straightforwardly be illegal under your proposal if the waiter is an employee (or contractor) who gets paid by the restaurant, because the restaurant is exchanging money with the waiter in order to promote the rosé, which is a product. It would only be legal if the waiter were an unpaid volunteer or owned the restaurant.
The second case seems like it would straightforwardly be illegal under your proposal if the business had to buy the free samples from somewhere, knowing that it would give some of them out as free samples, because then it's exchanging money with its supplier in order to promote its products (in some cases the same product, but in other cases the bananas and soft drinks next to the cash registers, which people are likely to buy if you can get them into the store). Also, if one of the business's employees (or a contractor) gave out the free samples, that would be exchanging money with the employee to promote a product. You'd only be in the clear if you're a sole proprietor or partnership who bought the products without intending to give them away, changed your mind later, and then gave them away yourself rather than paying an employee to do so.
Putting up a sign on the business that says the business name is clearly promoting products, if the business sells products. Obviously the business can't pay a sign shop. If the business owner makes the sign herself, that might be legal, but not if she buys materials to make the sign from. She'd have to make the sign from materials unintentionally left over from legitimate non-advertising purchases, or which she obtained by non-purchase means, such as fishing them out of the garbage. However, she'd be in the clear if her business only sells services, not products.
A large blanket loophole in the law as you proposed it is that it completely exempts barter. So you can still buy a promotional sign from the sign shop if you pay the sign shop with something other than money, such as microwave ovens. The sign shop can then freely sell the microwave ovens for money.
In this form, it seems like your proposal would put at risk basically any purchase of goods by a product-selling business, except for barter, because there is a risk that those goods would be used for premeditated product promotion. Probably in practice businesses would keep using cash, which would give local authorities free rein to shut down any business they didn't like, while overlooking the criminal product-promotion conspiracies of their friends.
So, do you want to propose some legal language that is somewhat more narrowly tailored? Because a discussion entirely based on "I know it when I see it" vibes is completely worthless; everyone's vibes are different.
I think the language is OK, it’s just that you are consistently ignoring “in order to promote a product” clause.
The first case is legal because waiter gets paid by the restaurant to serve meals, not to promote the specific brand of rose wine. Only illegal if the waiter has another, secret contract with the wine manufacturer to “recommend” specific wine.
The other two cases are legal because the money exchanged in order to receive goods. The fact the goods are then used to promote something is irrelevant.
I wasn't ignoring it; I specifically criticized it in detail. Your interpretation does not seem defensible or even coherent, but maybe you could propose less ambiguous language that clearly lays out the interpretation you have in mind. That way we can evaluate its tradeoffs.
I’m confident from PoV of any judge, the waiter in question gets paid for serving meals.
Similarly, a man purchasing physical stuff is giving money in exchange for the goods as opposed to advertisement services. Classic contract of sale of physical goods, nothing even slightly ambiguous.
It’s the same with ordering a sign. “Exchanging money in order to promote a product” doesn’t happen because manufacturing the sign is not a promotion. To promote something using a sign, you would need to post the sign in a publicly visible place. Manufacturing a sign and giving it to your client in private doesn’t promote the product shown on the sign.
I'm not a lawyer, nor is it my job to come up with loophole-free regulation. People in those professions can think hard about this problem, and do a much better job than some layperson who thought about it for a few minutes on an internet forum. Even for them, though, coming up with laws without loopholes that are not too restrictive in legitimate situations is often impossible, so it's ridiculous that you would expect the same from me.
That said, after thinking about it for a few more minutes, I can think of one simple addendum to my initial criteria. I wrote about it here[1], so I won't repeat myself.
It's asinine that this discussion is taken to extreme ends. We don't need to ban all forms of advertising and get into endless discussions about semantics and free speech in order to stop the abuse of the current system. There is surely a middle ground that does it in a sensible way. The only reason we don't fix this is because the powers that be have no incentives to do so, and the general population is conditioned and literally brainwashed to not care about it.
[1]: https://news.ycombinator.com/item?id=43599948
Your addendum, "Only applies for companies, and only to those with more than $100,000 ARR," doesn't help at all; it still prohibits the three examples in most cases and still has the barter loophole.
If you can't figure out how to express what you want in such a way that it doesn't immediately collapse upon the most casual attempt at critical thought, the problem probably isn't that the population is brainwashed. It's probably that what you want is to eat your cake and still have it, a logical contradiction that could never exist in any possible world.
You seem to think that the law is something that can be delegated to the lawyers. But in fact the law balances conflicting interests. If you don't participate in defining it, your interests won't be taken into account. A law written by lawyers without outside input will only serve the lawyers' interests, not yours.
It's not the role of citizens to come up with regulation that protects them. It's not their role to protest or even acknowledge that they are being abused. It's the role of governments and law makers to ensure the safety of their citizens. This is literally what we elect and pay them to do.
If you can't see how the current system is harming not just individuals, but the stability of governments and our democratic processes, and the role of the advertising industry in all of this, then nothing I nor anyone else says can convince you otherwise.
You seem more interested in scrutinizing hastily put together arguments by laypeople on an internet forum, than acknowledging the issues put forth, and the fact that fixing this deeply rooted problem will require multi-faceted solutions over a very long period of time.
And for that reason, I'm out.
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