We recently wrote about what incorrect clicks are and how to recognize them (more information can be found here: https://trafficwatchdog.pl/en/articles/12/incorrect-clicks-on-google-ads-how-to-recognize-them-and-what-you-can-do-to-eliminate-them). This time, we will try to discuss effects of click flooding both for the Advertiser and dishonest competitor, and above all, we will consider the legality of this type of activities. Although the phenomenon of click spamming on Google Ads is an undeniably important problem, it is difficult to clearly determine what is the relation of Polish law to this form of online fraud.
Effects for the Advertiser.
Some of them are obvious. Entrepreneur who uses Google Ads and is struggling with the problem of click spamming on his ads will naturally suffer financial losses. In part, they will be compensated, if we prove to Google that the clicks were incorrect, but the reimbursement will take some time. And in business, freezing capital is a waste.
The second negative effect is the waste of time that the advertiser has to sacrifice to check the quality of his clicks and prepare reports and statements, which he will then pass to the Google team for analysis (if he wants to get back his money). Losing time is in this case constant and inevitable - the Entrepreneur must control the statistics of his activities on an ongoing basis. And the time of the Entrepreneur is priceless.
The third consequence of Google Ads click flooding may be that the advertisement will not be displayed to the advertiser’s potential customer. If unfair competition is active in this area, it may lead to exhausting the daily budgets in the Google Ads of another company, and thus the message will not be presented to the right recipient, and the whole action (creating a campaign, setting its conditions, monitoring, etc.) turns out to be pointless.
The rarely mentioned effect of click spamming ads is moral damages. Entrepreneur using Google Ads must accept that he is constantly exposed to unfair competition and can’t do much to defend himself against it. This can be a source of stress, feelings of helplessness and other negative emotions.
Effects for an unfair competitor.
If a dishonest competitor does not use high-tech solutions, he exposes himself to a loss of his time, and if he has acquired the necessary programs, he probably incurs certain financial costs. It remains to be hoped that he will also feel remorse because, from a legal point of view, he does not have to fear too many painful sanctions ...
What does the Polish law have to say about it?
In discussions dedicated to legality of click flooding by the competition, you can encounter many reviews like "you can’t stop someone from clicking on your ads". Remember, however, that the matter is a bit more serious. The advertiser incurs material losses. If we believe that such action is a conflict between two companies, we can try to build a case based on the unfair competition principles, referring to the Act of April 16, 1993. On combating unfair competition.
Art. 3. 1. An act of unfair competition is an action against the law or morality, if it threatens or violates the interest of another entrepreneur or client.
2. Acts of unfair competition notably include: (…) obstructing access to the market, (…), as well as unfair or prohibited advertising, (…).
The acts of unfair competition mentioned in the act are only examples, the operation of the law is not limited to them, but even among them we can find records matching the problem of malicious clicks on a Google Ads by a competitor.
Art. 15. 1. The act of unfair competition is making it difficult for other entrepreneurs to access the market, notably by:
(…) 5) action intended to force clients to choose a specific entrepreneur as their contractor or creating conditions enabling third parties to enforce the purchase of goods or services from a given entrepreneur.
2. The act referred to in paragraph 1 point 5, may consist in particular in:
1) limiting in a significant way or excluding the possibility of the customer purchasing from another entrepreneur;
2) creating situations that directly or indirectly impose on customers by third parties the necessity to buy at a given entrepreneur or at an entrepreneur with whom a given entrepreneur remains in an economic relationship (…).
By not displaying the ad to the correct recipient, a dishonest competitor restricts the consumer’s choice, and can even enforce it, deciding which offer they’ll be able to see. In this area, however, proving the guilt will be very difficult - the act of performing a click is treated as an act of a person, not a company they might be affiliated with. In addition, the action taken by a typical consumer and dishonest competitor in this case does not differ from each other - only the inducement is different. If we do not present the appropriate evidence to the other company, we must take into account that our case will be directed to the civil court.
Adwords killer - impudence caused by impunity
Due to the low probability of legal sanctions, there were people who offered Entrepreneurs that in return for money they would click on their competitor’s ads on their behalf. There were even websites and agencies providing similar services. The most-publicized example concerned an offer placed on a well-known auction site. This concerned the "Adwords Killer" package, which consisted of click spamming on the competitor’s ads on selected keywords and entering the buyer into the "white list", so the list of companies against which it was impossible to buy such a service. And although the offer was removed soon after the case was publicized - the unpleasant taste certainly remained.
What will happen next - a decree regarding the theft of keywords
We can hope that in the field of legal regulations something will change, but the chances for it will be much greater if similar matters are reported. As it turns out, miracles sometimes happen ... On March 3, 2010, the District Court in Warsaw passed judgment on the dispute over keywords for Google Adwords. A company that bought key words that form the name of a competing company was found guilty of committing an act of unfair competition consisting in illegal advertising, which caused a threat to his competitor’s interests. The verdict was issued after the second instance of the Warsaw Court of Appeal referred the case for reconsideration. As a result, the defendant was obliged to pay a fine of PLN 10,000 for the indicated social purpose and PLN 5,717 to cover the costs of the proceedings.