Where the Consumer is the Commodity: The Difficulty with the Current Definition of Commercial Speech

Abstract

The business model for many online companies — Facebook, Google, and Pinterest are prime examples — does not involve a direct economic transaction with users. Rather companies entice consumers to provide personal information in exchange for access to free services. Although consumers, privacy advocates, scholars, and these companies may assume that the government can regulate the companies' advertising and compel the posting of a privacy policy, the current test for commercial speech only encompasses speech that proposes a direct economic transaction. This Article examines alternate formulations of a commercial speech test that would cover the speech of companies favoring indirect business models that "sell against" the personal information of those availing themselves of free products.