CYBERSPACE – “Check out this hot young slut we picked up in Nashville!!” the bold, large-font text link reads. Naturally skeptical, the surfer, a native of Nashville, clicks through to the sample video page and watches the “pickup” segment of the video trailer. He notes that it takes place on a sidewalk in front of an open-air shopping mall that looks an awful lot like Universal Studio’s “City Walk” in Los Angeles.It just happens to be a day when the surfer in question, a frequent business traveler, is himself headed to the Los Angeles area. After making his way from LAX to his West Hollywood hotel, he returns to the website in question. Lo and behold, the self-same text link, regarding the self-same “slut” now reads “Check out this hot young slut we picked up in West Hollywood!!”

Feeling more opportunistic than upset, the surfer exits the porn site, and heads to Google, where he conducts a search under the phrase “filing a false advertising claim.”

The above hypothetical (granted it’s an unlikely scenario), played through my head recently, after observing the expanding use of geo-targeted ads, text links in particular, in the marketing of adult web sites.

While many of the ads I’ve seen are not particularly problematic – making use of geo-targeting without basing a specific ad claim on the geographic location of the user – I have seen literally hundreds of links making claims that are, by definition, absolutely false.

I know what you’re probably thinking; “A false advertising claim based on a geo-targeted ad on a porn site? Give me a break, Q.”

Before you dismiss the notion though, consider that false advertising claims have become more common in recent years and lawsuits based on such claims have been increasingly successful, with courts requiring a lower and lower standard of proof on behalf of plaintiffs and a higher and higher standard of conduct, ethics, and transparency on the part of advertisers.

(This would probably be a good time to point out that I’m not a lawyer and nothing I write or say constitutes legal advice; instead, think of it as marketing advice from a layman who sits around reading amicus curiae briefs “for fun…”)

Depending on how a false advertising complaint is brought about, and by whom, you could find yourself hearing from the Federal Trade Commission (FTC), the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc., a State Attorney General, or directly from the consumer (and/or the attorney representing that consumer) initiating a claim.

The FTC has been granted broad authority to prohibit “unfair or deceptive acts or practices.” Greater than the concern over the scope of the FTC’s authority, though, is the fact that when the action is initiated by the FTC, the burden of proof falls on the advertiser. In other words, it would be up to you to demonstrate that your advertising is not deceptive, rather than up to the plaintiff to prove that it is.

The remedies available to the FTC vary from simple cease-and-desist orders to civil penalties, but there is no private right of action under the FTC act which covers false advertising claims.

Another possibility, albeit a very remote one in the online adult market, is that a competitor might sue under Section 43(a) of the Lanham Act. Unlike the FTC, in a Lanham Act case, the plaintiff has the burden of proving that the ad(s) in question is deceptive or false. (Consumers cannot bring false advertising claims under Lanham).

Although damages are available under the Lanham Act, they are generally only granted in “egregious cases,” and are “difficult to prove and relatively rare” according to an analysis published by Wiley, Rein and Fielding, a Washington, DC-based firm that has litigated numerous false advertising claims.

The NAD, which was established in the 70’s by the advertising industry, handles any case involving “national advertising.” Advertising on and for websites is automatically considered “national” by the NDA, which means that it can issue demands for compliance to any American-owned website, potentially. Via the NAD, claims may be brought by consumers or competitors, and like the FTC, it is the advertiser who bares the burden of proof and must demonstrate that the challenged ad(s) are not false or misleading.

Compliance with NAD decisions is entirely voluntary – so what’s the big deal, you ask? Well, successful NAD claims are often used as the basis for an additional step, usually a complaint brought through the FTC, an action on the part of a State Attorney General’s office, or a lawsuit initiated by an individual consumer. NAD decisions are also published, which could lead to a public relations nightmare for any company that bucks a decision issued by NAD.

Complaints handled by State Attorney Generals have become far more common in recent years, according to the report from Wiley, Rein and Fielding. While consumer protection laws vary from state to state, in most instances it is the plaintiff who must prove that the ad(s) in question is false or deceptive.

An action brought through a State Attorney Generals’ office is probably very unlikely to happen within the adult sector. That said, suppose a staunchly anti-porn AG caught wind of a particularly heinous example of false advertising on a porn site he finds objectionable anyway; a false advertising claim might prove a much easier and simpler means for that AG to crack down on a porn site than an obscenity prosecution.

The most likely source of trouble for an adult site making false advertising claims, though, is the prospect of legal action brought by a consumer, or even a class action suit, brought under state consumer protection laws. Such actions often come in the wake of an FTC action, a successful Lanham Act suit, or a NAD decision.

In other words, you might first get a letter from NAD that you simply laugh off because it is voluntary and then get served with a lawsuit that, unfortunately, will prove much harder to ignore….

While it might be a stretch to think that a consumer will go as far as initiating a false advertising lawsuit concerning deceptive, geo-targeting-based ads on a porn site, one has to balance that possibility against whatever value they think their geo-targeted advertising possesses.

In many ways, it comes down to a simple question what you think of your site visitors and prospective customers and whether you feel it is OK to essentially lie to them outright, in order to get their business. There’s also the not-entirely-separate question of whether you believe the false claim in your ad(s) is convincing, compelling, or effective marketing to begin with.

Personally, I think ad claims that are clearly false – and I don’t just mean those that are plainly false at first glance, like the example cited in the first paragraph of this article – represent both an ineffective marketing approach and an unethical business practice.

Look at it this way; if you want the consumer to believe the false claim, then you are willfully and knowingly engaging in false advertising. If you don’t expect them to believe the false claim in the ad, then why make the false claim in the first place? That’s not just bad marketing, that’s unrefined, unfiltered, and unrepentant idiocy.

Believe it or not, credibility does count to consumers, even porn consumers. I know that’s a hard thing to accept, especially when one looks at the crap that tops best-selling non-fiction book lists or when you consider what type of person generally gets elected to public office, but there’s no question that once you lose a customers’ trust, you will lose their business, as well.

I guess what I’m saying is that if you’re engaging in textbook-definition false advertising, count yourself lucky if your customers’ trust and business is all you lose.