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A three-judge federal panel's decision overturning the Communication

Decency Act-if upheld by

the U.S. Supreme Court-could have major implications for marketers, say those close to the case.

Legal and ad experts say it removes a major uncertainty and that the ruling from the 3rd U.S. Circuit Court of Appeals in Philadelphia-that the Internet enjoys greater First Amendment protection than even print media-makes imposition of government restrictions on use of the Internet much more difficult to uphold.

The law is being challenged by the American Civil Liberties Union and Citizens Internet Empowerment Coalition, a coalition of high-tech companies.


"It opens the door for marketers," said Bill Burrington, director of law and public policy for America Online. "What the court did was give the highest possible First Amendment protection to the Internet. The spillover is that whatever the government decides to do for commercial sites is going to have to be narrowly tailored."

Instead of statutory limits, the case will put increased pressure on advertisers, Internet groups and government agencies to develop voluntary codes, they add.

Several consumer groups have already called for major restrictions on Internet marketing ranging from bans on tobacco-related sites to restrictions on use of product mascots as Web page spokesmen for kids products.

The Center for Media Education has called for clear separation of advertising content on Web sites from informational content, much as there is in other media.

Similar limits may still come from guidelines being developed by the Children's Advertising Review Unit of the Council of Better Business Bureaus' National Advertising Division and other groups.


However, the court decision, say the lawyers, makes it extremely unlikely that laws mandating sweeping restrictions will be upheld, and it may also mean any voluntary rules may not be terribly burdening.

Several ad groups working on a privacy-oriented Internet code told the Federal Trade Commission recently that a voluntary code should require advertisers to clearly identify themselves; let users bar sale of any personal information gathered and correct any personal data; and give users the choice of automatically rejecting unsolicited e-mail. The latest proposal from the International Chamber of Commerce is similar.

Key to the lower court's decision is its determination that the Internet is more akin to a phone line than a broadcast.

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