Notes on the Ethics of Advertising: McCall's Stuff

Notes on McCall’s, “Deceptive Advertising”

Summary: Consequentialist arguments against deceptive advertising fail. However, we can see that many (most?) advertisements are immoral on non-consequentialist grounds. For advertisements regularly manipulate consumers by intentionally deceiving them, and this is morally wrong whether or not it produces bad consequences overall. Although there are several kinds of morally permissible deception, deceptive ads don’t fall into any of these kinds. Furthermore, there are some circumstances in which advertisers are morally responsible for misleading consumers, even if such deception is unintentional. This can occur in two broad classes of cases: (i) cases in which the advertisers should have foreseen that their ads would mislead consumers, and (ii) cases in which, although the advertisers couldn’t possibly have foreseen that the consumers would be misled, they don’t remove or change the misleading portion of advertisement after they later come to realize that people are being misled by them.

Basic Structure and Progression of the Piece:

The first argument against deception (and so, by implication, deceptive advertising): a consequentialist argument: The argument is that deception would make social cooperation impossible, and thus it would lead to the bad consequences of our missing out on the many great social goods to be gained only through social cooperation.
-Example: It would make a system of credit impossible
- The author ultimately rejects this argument, for it’s not true that a cooperative society can’t survive in the presence of deception. In fact, there is a lot of deception in society. The kind of deception that is destructive of cooperative society is deception that doesn’t occur in well-defined contexts -- that is, deception that occurs in contexts where we don’t expect it. However, one might think that advertising is one such well-defined context, and it is therefore morally permissible, and not destructive of a cooperative society (see the “poker” illustration, p. 358).

The second argument: Deceptive ads are instances of manipulation. Manipulation involves getting others to do what you want by overriding their ability to make rational choices. In the case of deceptive ads, the deception involves getting you to act on a false belief. As such, deceptive advertisements involve treating the intended audiences of the ads as means to an end (i.e., as things, and not as people).

The author then admits that there are three types of morally permissible deception: when (i) it is necessary in order to save one’s life, (ii) such deception gives a person no unfair advantage over the person deceived, or (iii) all of the parties involved know that deception is likely.

However, the author then points out that everyone admits that deceptive advertising isn’t necessary to save anyone’s life (and so, it’s not an instance of type-(i) morally permissible deception). He also points out that it’s obvious that deceptive advertising is often employed to gain an unfair advantage over both consumers and competing businesses (and so, it’s not an instance of type-(ii) morally permissible deception). As he says:

“More typically, deception in advertising is calculated to create an unfair advantage for the advertiser both against the consumer targeted by the ad and against the business’s competitors. It also intends some loss or harm to both of those parties. A consumer who buys one brand of product because she or he was deceived into thinking it a better value than a competitive product is harmed, as is the competitor” (quote from article)

But what about permissible deceptions of type-(iii)? Aren’t deceptive ads of this type? McCall considers this objection, which can be put as follows: Deceptive advertising is morally permissible. For the parties involved (i.e., the consumers) know that deception is likely in the context of advertisements: they’re expecting that advertisements are trying to deceive them in some way. But if so, then deceptive advertising satisfies clause (iii), and so the deception isn’t wrong. (based on discussion on p. 359)

Reply:

(A) Factual problems with the objection: In actual fact, consumers are constantly fooled
by such ads. The FTC supports these conclusions, based on their investigations. (359)

(B) Conceptual problems with the objection:
1. The very fact that we learn to become wary of particular kinds of deception (cf. the “economy size deception” example, p. 359) presupposes that you weren’t expecting deception during those times before we learned to be wary.
2. The idea that one can be deceived when one is expecting to be deceived is incoherent. For it is only possible to expect deception in well-defined contexts: expecting deception to occur in all possible places and by all possible techniques of deception is both conceptually and psychologically impossible.
(a) It’s conceptually impossible, because there are an infinite number of possible contexts and techniques for deceiving you, and a consumer logically cannot prepare for an infinite number of techniques of deception.

(b) It’s psychologically impossible, because attempting to prepare for a large number of possible means of deception would soon “result in overload and decision-making paralysis.” (p. 360)

Objection: The consumers, and the consumers alone, are to blame for being deceived. For it is a person’s responsibility to be critical of potentially deceptive claims. (Based on discussion on p. 359)

Reply: Even if that is true, that fact in no way removes the wrongness of the advertiser’s attempt to deceive the consumer. Notice that even if the consumer was critical, and didn’t fall for the deception of the ad, the advertiser would still be wrong in the intent to deceive the consumer. (based on discussion on p. 359-60)

-The implied principle of assessment of the (im)morality of deceptive advertising: If an advertisement is an attempt at intentional deception, then even if the attempt is unsuccessful, it is morally wrong. (Intention to deceive → morally wrong)


-The difficulty of applying the principle: Do we have to be “mind-readers”, or play “amateur psychologist” to apply it?

-Helpful criteria/reliable indicators for telling when an ad is intentionally deceptive: based on reliable clues from an ad’s (a) design and (b) content.

-Kinds of cases:
-Intentional deception by means of visual communication:
-cases in which the product is made to appear as something it is not. (p. 361)
-cases in which the ad misleads by visual images.

-Intentional deception by means of linguistic communication:
-Cases in which the ad deceives by what is implied
-Cases in which pertinent information is omitted
--Objection: It’s too hard to tell when an advertiser is acting immorally by omitting information. We can’t just say that no omissions are permitted. For then two problems immediately arise:
(i) It’s too demanding: it is virtually (if not actually) impossible to disclose everything about the product that is relevant to making a decision about buying it. (362)
(ii) It’s unreasonable: Does the advertiser (and the relevant business) really have to help out her competitors by showing how, and in what ways, the latter’s product is better than theirs? But that’s what the principle requires, if we interpret it seriously and literally. (362)

-Reply, in light of these problems:

- There are clear cases where an ad is intentionally deceptive, and this fact isn’t changed when we discover that there are unclear cases.

- Furthermore, this deceptiveness is due to the fact that an advertiser intentionally omits information that might lead the consumer to a different decision than they otherwise would have made. Yet we have seen that the principle is problematic if intended as a hard-and-fast rule. Therefore, it may be useful as a general rule of thumb. With that objection resolved, let’s get back to cases...

-Cases in which the ad deceives by what is explicitly stated
-Cases where only part of the relevant information is explicitly stated (361)
-Cases where all of the relevant information is explicitly stated, but in a way that the consumer can’t process (e.g., “small print” cases, “too much to read given the time allotted” cases) (361-2)
-Cases where the ad selectively omits important information. (p. 362)

-conclusion of section: we have outlined several broad classes of ads, whereby we can make reasonably confident judgments that the ads are intentionally deceptive. But if so, then the objection fails: we don’t have to be mind-readers to apply the principle. Rather, certain kinds of advertisement form and content are reliable indicators for when the advertisers are intentionally trying to deceive consumers.

-A final argument: Cases where an advertiser is still morally responsible if a consumer is misled, even if the advertiser didn’t intend this to happen:

(I)When the false impression created by the ad, though unintended, was foreseeable by the advertiser

(II)When the false impression created by the ad, though unintended, is not corrected, even after the advertiser realizes that consumers are buying the product on the basis of the false impression. (i.e., the false impression was unforeseeable but uncorrected after they know that consumers are being misled)

The principle: If an ad unintentionally misleads the consumer, and either (i) that fact was foreseeable by the advertiser, or (ii) was not foreseeable, yet not corrected after seeing that people are in fact misled by the ad, then the advertisers are morally responsible for the consumers being misled. (Advertisers unintentionally mislead consumers & either (i) foreseeable or (ii) unforeseeable yet not corrected afterwards → morally responsible)