BCCA dismisses appeal from decision protecting internet advertising strategy of career training institution

Without search engines, most of us would look at the internet as simply a mad mash of information, streams of words and images scurrying in seemingly infinite different directions, independently coherent but collectively mind-numbing and messy to no end.  Like an enormous library without no order whatsoever.  We rely on google, primarily,  to serve as our index, our table of contents, our familiar guide on unfamiliar territory, piercing the storm of data and sending us directly (or close enough) to where we want to go on the web.

Much internet advertising begins on that premise.  Nobody knows every website they want to go to before they get there; finding CNN, for example is easy, but generally people need to be directed.  Online marketing is all about how to get people directed to your site.  Or, more precisely, how to get the search engines to direct people to your site.

In Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc. (CanLII), the BC Court of Appeal considered one internet advertising strategy used by a private career training institution that involved keyword advertising (Wikipedia).  The story behind this strategy begins with a search engine realizing one day that rather than responding to search requests by populating a list of relevant websites, it could make money by selling the opportunity for private sponsors to have their websites appear with priority when certain words (or “keywords”) were being searched.  For example, a food store in Richmond with a dinky website could cut the queue by paying google to appear on the page whenever a person typed “food store” and “Richmond”.

The manner of keyword advertising in this case was somewhat less straightforward.   The defendant included the names of its competitors as paid keywords, which meant that a person searching for one school by name would see a link to the defendant’s school as well.

The government agency regulating these sorts of institutions found this conduct to violate one of its bylaws, specifically that the defendant was “misleading” potential students.  The parties duked it out in the BC Supreme Court, which ruled in favour of the defendant for two simple reasons (see here for comments on that decision).  First, this strategy is nothing more than an updated version of putting your ad in the yellow pages right next to your competitor’s.  Second, the average student would not go so far as to register in a course on the defendant’s website, thinking it was the website for the school they originally searched for.

The BC Court of Appeal was relatively unimpressed with the yellow pages analogy, but it upheld the decision nonetheless:

[26]           In argument before the chambers judge and in this Court, the respondents contended that their keyword advertising is akin to advertising that places a business advertisement proximate to a competitors listing in the Yellow Pages of a telephone book.  The appellant rejects this contention as do I, but I do not accept the appellant’s assertion that the proper analogy is to the white pages where individual names appear.

[27]           These propositions seek to analyze the legal implications of the use of modern technology with practice and technology that bears no resemblance to it.  The Yellow Pages are based on topics, not names.  The white pages contain names, but no choices.  An Internet page gives choices, names and topics.  It is information technology carried far beyond the traditional.

[28]           The task for the chambers judge in this case was to consider whether there were reasonable grounds to believe that the results of the use of today’s technology misled or were likely to mislead.  That is, whether using a competitor’s name as a keyword to electronically produce a web-page showing the respondents’ web-site in priority on a list of possible career colleges was misleading or likely to mislead.

The Honourable Mr. Justice Chiasson, who wrote this judgment, went on to agree with the lower court judge that, fundamentally, if nobody would reasonably be misled by this practice, then the practice was not, in fact, “misleading”.

This strikes me as the right way to go. The sponsored site is given priority; the rest of the list is not abolished.  Students should know, and do know, better.  Buyer beware.