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Captive audiences and unwanted advertisement: The construction of public/private borders in legal discourse
Unformatted Document Text:  23 Finally, we have seen that space permeates the discourse of captive audience. However, the Internet challenges traditional definitions of space and the boundaries between public and private (Turow, 2001). On the one hand, it could be argued that spamming a web site would render its users ‘captive’ or, in the words of a district judge, ‘mousetrapped’ 30 . On the other hand, commercial messages directed to a site may be considered unwanted or damaging only by certain categories of users. We wonder how the conflict of privacy and free speech rights would be resolved in those cases. The rhetorical logic of judicial inquiry attempts to fit new social situations into pre-existing patterns. Deriving authority from precedents means establishing forced comparisons among different media of message delivery, thereby obscuring the differential intrusiveness of different channels of communication. Establishing harm means defining social identities legally recognizable by the courts. Relying on market – created opt-out mechanisms means disregarding inquiry into whether or not those mechanisms are actually accessible to some audiences. Our conclusion suggests that the workings of judicial logic may have actually increased corporate power over consumers. Further inquiries into the role of the courts in constructing and regulating communicative borders may shed additional light on the operative principles underlying fair policies of consumer protection. 30 See FTC v. Zuccarini, U.S.Dist.Lexis 13324 (2002)

Authors: Popescu, Mihaela. and Baruh, Lemi.
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23
Finally, we have seen that space permeates the discourse of captive audience.
However, the Internet challenges traditional definitions of space and the boundaries
between public and private (Turow, 2001). On the one hand, it could be argued that
spamming a web site would render its users ‘captive’ or, in the words of a district judge,
‘mousetrapped’
30
. On the other hand, commercial messages directed to a site may be
considered unwanted or damaging only by certain categories of users. We wonder how
the conflict of privacy and free speech rights would be resolved in those cases.
The rhetorical logic of judicial inquiry attempts to fit new social situations into
pre-existing patterns. Deriving authority from precedents means establishing forced
comparisons among different media of message delivery, thereby obscuring the
differential intrusiveness of different channels of communication. Establishing harm
means defining social identities legally recognizable by the courts. Relying on market –
created opt-out mechanisms means disregarding inquiry into whether or not those
mechanisms are actually accessible to some audiences. Our conclusion suggests that the
workings of judicial logic may have actually increased corporate power over consumers.
Further inquiries into the role of the courts in constructing and regulating communicative
borders may shed additional light on the operative principles underlying fair policies of
consumer protection.
30
See FTC v. Zuccarini, U.S.Dist.Lexis 13324 (2002)


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