Voice-activated advertisements: Should we be worried or are they the next big marketing scheme?

Burger King PR genius or criminal actions? Ryan Gaskell speculates in his shortlisted entry to the BARBRI International Cyber Crime Blogging Prize

Burger King has created a frenzy with its latest advert designed at piggybacking android devices. The ad was designed to wake up the devices with the phrase “OK Google” then the devices are ready for a command, in this case it was getting the phone to tell the user what a ‘Whopper Burger’ was.

Whilst the ad itself was short lived for several reasons ranging from Google pulling the plug to the definition of the ‘Whopper Burger’, which eventually ended up as being made from a ‘medium-sized child’. Many panned the ad as invasive, but is it or should it be illegal?

Whilst nothing covers instances such as these directly, one which could be stretched to it would be the Computer Misuse Act 1990. It outlines that someone is guilty of an offence under s1 if they cause a computer to perform any function with intent to secure access to any programme or data held in any computer, that this access is unauthorised and that they know that it is unauthorised.

This seems irrelevant to begin with as they have not secured data from people’s computers. However, once it has been read with s17 for the interpretation it seems more relevant, stating that the above includes using the computer and is further expanded to include causing a programme to be executed. In this instance, a programme is a section of code which prompts an action here it would be the voice activation of ‘OK Google’. There is the issue though as to whether the “OK Google” function is a programme for the terms of this act.

This is just an idea of what may be applicable as there would be an additional issue of classing the phones and speakers as ‘computers’ for this purpose. It has been found in some instances that a phone has been a computer. For sentencing reasons, more than anything else, it was shown in the US case of Kramer that a phone could be a computer but this was to open the option of more severe penalties. It could be read purposively and the judges read in that it should be computers and phones to reflect the current abilities of smart phones. All this does raise a question though: should the law be changed to reflect the possible abuses of voice recognition?

The Burger King ad has shown the difficulties in finding a law to cover this. People could raise a breach of article 8 of the European Convention on Human Rights for a breach of private life, however it does seem like a costly step and someone would have to feel very aggrieved to bring it in the first place.

Other than this there may be no legal recourse, so should we leave it to the moral opinions of companies like Google to decide what should be allowed? This could create disparities and people piggybacking services which let them and it could become profitable for companies like Google to allow it. It seems like a sensationalism here but let me break it down.

If companies try this with a different voice activation, such as Siri, and Apple allows it as it sees it as advantageous. It could result in ad tie ins between Apple and Burger King for instance, as it is not just promoting the product itself but also the programme which is telling you about it. It could lead to the next ‘brand’ of advert.

There were radio adverts and television adverts, now there are internet adverts which range from pop ups to intros to YouTube videos, is this not just the next version?

The voice activated ad begs the question: when is advertising too much advertising and should there be limits on what can be advertised on the internet? There has been an extraordinary focus on shutting down cyber crime, ranging from phishing to file hijacking to DDOS (Distributed Denial of Service) attacks but not one has stopped to question whether other things which may be construed as legal should become illegal in the world of cyber crime.

Ultimately it becomes a matter of perspective, as when people are losing money to phishing scams as opposed to their phone telling them what is in a “Whopper Burger” it seems obvious where the resources should go. Why do governments need to spend their money on combatting the problem when it barely exists yet?

On the other hand, though the law often reflects the morality of society. If society is against the invasion of privacy, as shown with the ‘phone hacking scandal’, then surely there should be a law to stop this. We have not authorised companies to use our phones and home devices.

There was a recent change to the Computer Misuse Act 1990 by the Serious Crime Act 2015 however this was to reflect, as the name suggests, serious crime where there needs to be serious damage which to set the level for ‘serious’ includes “damage to human welfare” and “damage to the national security of any country”. Nothing has however been added to the Computer Misuse Act 1990 to reflect minor aggrievances where there has been little or no harm or damage.

Maybe the Burger King ad has prompted people to think about the lower end of the scale, as whilst it may start off small, what if every television and radio advert utilised the voice activation software?

This brings it back to the question of who should regulate this sector. Should it be the company which owns the voice recognition software in question? Or rather the owner of the webpage which gets referred to through the voice recognition? Alternatively, should it be the government of each country where the ad may be broadcast? Perhaps it would in fact be best for this area to be regulated by a wholly independent body.

Ryan Gaskell is a third year law student at The University of Law. His entry was shortlisted in the BARBRI International Cyber Crime Blogging Prize. You can read the winning entry here.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

4 Comments

Anonymous

As a privacy/data protection lawyer (admittedly very junior) I think it does raise a much bigger question about the way our “smart devices” interact with each other. Many of our devices already ‘talk’ to each other with or without our knowledge. This is just a far more literal example of that.

Taking it to an extreme example – your smart meter sends British Gas your meter readings which in turns switches your lights off because your bank has told the meter you dont have the money to pay – you probably have a right to know.

I refuse to believe we consent to these things happening merely because we buy the products. The upcoming GDPR makes it clear we need to be told what is happening and why, we also have a right to object to it.

Ok the burger king advert is a gimmick and probably wouldn’t even be caught by data protection laws but we can’t wait until a company is already infringing our rights before we choose to legislate for it.

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Smallbones

The ad was illegal simply because Burger King stole an ad on Wikipedia. the text that was read on the android. WP does not sell ads, it does not allow unpaid ads or marketing of any sort, any paid editor (such as the BK employees who inserted the text) must prominently declare that they are paid and who paid them (The BK employees didn’t do this). So it is simple theft of services.

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