Actually, I do think making a proper distinction between Keyword Advertising and Meta Tags is important in law; Below, a list of three reasons as to why:
1: Because they aim for different effects.
With the help of meta tags, people attemp to transport content or to improve the ranking of a site in the SEARCH RESULTS, while Keyword Advertising is used to display ADVERTISEMENTS above (Top-Ad) or beside (Side-Ad) the search result. While users soon “learn” to ignore these ads (for more details on this effect see Level of Trust in Search Engines), trying to smuggle oneself into the search results is a way of exploiting users’ incredible, and most probably unfounded, trust in the ranking of search engines (please see here, under Do Users notice the Ads?). So, while the first is a method of advertising, the later one aims at deceit. But does this make any difference in practise? It does! Why?
2: “Because mummy said so“.
Let’s face it, this has always been the longest running and best argument in the world ever. The market leader has officially declared (again) that it does not consider meta tags for the ranking of its search results. Maybe others do, but Google at any rate doesn’t since 2004(!). So, as there already is a difference in practice, the question is shouldn’t this difference be reflected in the law as well…?
3: Because evolution/development just keeps moving on.
Although cats and dogs are both mammals, only few will argue that they are the same animal. While it is completely reasonable, and in some cases even necessary, to develop analogies between existing practises and new ones, this does not mean that the old terminology should be forced onto new phenomena. The analogy might later (in fact) turn out to be perfectly applicable, but using the old term might prove problematic and should be regarded as unprofessional.
(And dear colleagues let’s face it, not everybody who has been given a BlackBerry by his/her company or has bought him/herself a new shiny/stylish iPhone is an IT-lawyer. This stuff IS sometimes a bit complicated – otherwise my doctoral thesis would prove to be rather pointless! 😉
Please feel most welcome to disagree on any or all of the above and feed this troll by commenting.