' Clickbait: Can it Be an Unfair Competition Practice? | MTLR

Clickbait: Can it Be an Unfair Competition Practice?

Imagine you are navigating on a specific social media and, suddenly, you see a post from a page you’re following with this attractive headline: “We have all the specifics of the new chapter of this series!”. Turns out that that is one of your favorite series and you want to have a heads-up about this chapter, so you click on the link, which will take you to their website…but turns out there is no information about the new chapter of your series, and only provides you with basic information regarding the series, and finishes with “the new chapter will be aired soon”.

This may be just a waste of time for you, but underneath there is more. The phenomenon previously described is called clickbait, which refers to “content whose main purpose is to attract attention and encourage visitors to click on a link to a particular web page”. This has an important economic implication and should be addressed as an unfair competition practice. I will cover the basic economics of websites as internet platforms, the notions of bait advertising according to the FTC, and how these particular headlines can be qualified as such.

Internet websites have become media platforms that have two types of consumers: on one side, we have the ones who are willing to access the website because of the content it has (the “content consumers”), and on the other side, advertisers that want to address their products or services to the first type of consumers, and are willing to pay the platform for their space. Whenever this characteristic appears, the notion of two-sided markets arises. Two-sided markets are defined as “markets in which one or several platforms enable interactions between end-users, and try to get the two (or multiple) sides “on board” by appropriately charging each side”.

Hence, it is possible to affirm that websites are platforms that interact in a two-sided market. One consequence of this is that websites will have to compete for the two types of consumers, the main objective being to attract the “content consumers” since they are the “product” they will offer to advertisers. The main way to achieve such a goal is with advertising. Although historically speaking, advertising was a way to bring information to consumers about a specific product or service, this function appears to have become obsolete because of the new information era, being the persuasive function the remainder.

However, whenever issuing an ad, advertisers must attract consumers by not baiting them. According to the FTC, “bait advertising is an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell”. This practice is a method of unfair competition since here the advertiser is using non-faithful techniques to attract consumers that, otherwise, should have made a different decision (most of the time this means choosing a competitor).

Considering the previously described definition of clickbait, it is possible to conclude that it is, in fact, an unfair competition practice. Unfortunately, by the time this post is being written, there is no FTC guidance related to clickbait. However, I believe this void can be filled considering the rules regarding bait advertising, mainly because, as we have seen, clickbait is nothing but bait advertising on the internet. As such, it shall be prohibited. However, it is important to highlight that there shall be a limit on clickbait prohibition, and it is the exercise of freedom of speech. On this point, I consider that, whenever analyzing a clickbait case, the authority should determine whether the ad has a commercial purpose. If it has this purpose, the practice shall be sanctioned as an unfair competition practice. On the other hand, if this practice is the sharing of a specific idea or interpretation of facts (like fake news), this cannot be seen as an unfair competition practice, since this is related to the exercise of freedom of speech.

Pedro Chirinos Terrones is an Associate Editor on the Michigan Technology Law Review.

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