Ad fraud is certainly unethical and problematic, but is it actually illegal? The answer is…maybe. As with most internet issues, laws have not caught up with current technology which makes this an interesting subject. In addition to a constantly changing landscape that far outpaces slow-moving legislation, there are a number of other issues that make laws and enforcement difficult. These include a lack of transparency from digital ad companies, a continuously moving ad cycle, information that crosses borders, and even lack of interest from the people being defrauded.
So how do we determine the legality?
Let’s start with what laws do exist. There aren’t many.
In the US, wire fraud is often the law used to prosecute cases of online fraud. These laws are difficult to convict on however because they generally require direct monetary transactions as well as an intent to defraud, which is nearly impossible to prove. Most other laws regarding advertising are monitored by the FTC and focus on ensuring that the customers are not defrauded by the advertisements themselves, rather than protecting the companies purchasing the advertisements.
Around the world, most countries have similar laws to the US. The EU has passed some laws that indirectly affect ad fraud like GDPR and the EUCD. However, like the US, most of these laws deal with what businesses must do to protect consumers and creators rather than protecting businesses from fraudsters. Further complicating matters, jurisdiction is often questioned in these cases. Fraud rings may work from other countries with more lenient laws, making it difficult to prosecute them for their crimes.
In addition, some of these cases have been argued to be civil cases instead of criminal cases. While it is easier to get a civil case heard, it can be far more expensive for the company and may end up costing them more in legal fees than would actually be awarded in damages.
But I thought fraud was illegal?
The blanket term “fraud” covers a wide variety of offenses that can be either civil or criminal. While the laws regarding fraud in general can be quite confusing, ad fraud gets even more confusing because it involves several complicating factors.
For example, bots are often used to commit impression fraud and retargeting fraud. Proving that bots were employed by a particular person or group can be incredibly difficult. In addition, sites that are made specifically for online advertising fraud pop up and are removed so often that it is difficult for slow-moving investigations to keep up.
Influencer or affiliate fraud can be just as confusing. Proving that a particular affiliate knowingly committed fraud by sending bad traffic to your site is not easy. Real fraudsters often employ numerous cloaking methods to block businesses from discovering who they are. Even methods that can track them often only yield an IP address or location, which is nearly useless in a criminal case.
Does anyone get arrested?
Some groups and fraud rings have been shut down and prosecuted in recent years. The 3VE fraud ring made headlines in 2018 as one of the largest takedowns in ad fraud. However, advertising fraud is still a multibillion-dollar industry. The rings that get shut down every so often are often the biggest operations that have expanded beyond simple ad fraud. Not to mention that these rings often exist for 10 years or more before law enforcement is able to stop their operations.
Recent years have led to more cooperation between countries and advancements in law enforcement strategies. But we still have a long way to go before we are able to properly prosecute the ubiquitous fraud occurring in digital advertising.
Can we fix it?
Companies can protect themselves by educating themselves and researching fraud prevention options that work. Beyond that, the best way to move toward abolishing ad fraud is by working together.
Demand transparency from your advertising agencies and exchanges. Ask questions about fraud prevention and find solutions that fit your budget and advertising strategy. Work directly with trusted publishers to give fraud less of an opportunity. Consider your digital advertising strategy carefully and stay up-to-date on campaign reports, looking for anything suspicious. Get involved by working with law enforcement and politicians to actively fight fraud and create rules for the future that make sense.
While there is no solution to completely eradicate ad fraud, it is possible to significantly reduce its impact on your company. Just being aware of how it can affect you and what you can do about it is a step in the right direction.