Advertising’s oldest rule is simple: Know your audience. In California, following it may get an online platform sued. Show retirement-home ads to seniors and student discounts to college students, and sensible targeting can suddenly look like unlawful discrimination.
That question is now before California’s Sixth Appellate District. The dispute arises from a trial court ruling in Haynie v. Google that could turn routine age-based ad targeting into a violation of California’s Unruh Civil Rights Act. The International Center for Law & Economics (ICLE) filed an Aug. 17 amicus letter supporting Google’s petition for a writ of mandate in Google LLC v. Superior Court.
If the ruling stands, it could cause widespread, unintended harm to consumers, small businesses, and the digital economy. Multisided platforms—online services that connect businesses with users—would likely restrict advertisers’ use of age data. The predictable result would be less relevant and less age-appropriate advertising for everyone.
When Knowing Your Audience Is the Problem
The lawsuit asks whether using age criteria to target online ads violates California’s Unruh Civil Rights Act. The trial court drew a sharp distinction. California law may permit differential pricing based on age, the court concluded, while differential advertising based on age may violate the Unruh Act.
The court also rejected Google’s claim of immunity under Section 230 of the Communications Decency Act, the federal law that generally protects online platforms from liability for third-party content. Because Google allowed advertisers to use age criteria, the court reasoned, it helped develop the allegedly unlawful content.
The Unruh Act aims to eliminate “arbitrary, invidious or unreasonable” discrimination. As one court explained, the “fundamental purpose of the Unruh Civil Rights Act is the elimination of antisocial discriminatory practices—not the elimination of socially beneficial ones.” Consistent with that purpose, courts have upheld age-differentiated products and prices when those practices provide a social benefit.
In this case, the trial court found it sufficient for the plaintiffs to allege that Google let advertisers use age criteria, causing them to miss certain ads for insurance and financial products. Yet it is hard to see anything invidious about showing student car-insurance discounts to college-age consumers or Medicare Part D prescription-drug plans to seniors. Making ads less age-appropriate serves no one.
There’s a Price for Irrelevant Ads
ICLE’s amicus letter urges the court to consider how multisided platforms work before deciding whether age-based ad targeting provides a social benefit.
Services such as Google Search, YouTube, and Gmail connect users with advertisers. Advertisers pay Google to reach those users, and that revenue subsidizes free access to Google’s services. The arrangement generates tens of billions of dollars in annual consumer surplus—the value consumers receive beyond what they pay.
That value depends partly on advertising that people find useful. If ads become less relevant or helpful, users will engage less, advertisers will earn lower returns, and Google will have less revenue to fund free content and services.
The U.S. Supreme Court recognized in Ohio v. American Express that multisided platforms must balance the interests of each group they serve to maximize the platform’s value. Google can offer its services for free because targeted advertising works. Users of all ages benefit because they might otherwise have to pay for access. Restrictions on ad targeting would reduce the services’ value to consumers and advertisers alike.
Consumers would likely see less relevant, less age-appropriate, and potentially more obtrusive ads. Advertisers with limited marketing budgets would waste more money reaching people unlikely to want their products. Online platforms would face greater pressure to impose paywalls, raise ad prices, or restrict features.
These economic effects help explain why age-targeted advertising can provide a social benefit under the Unruh Act. Google should not face liability merely for giving advertisers the tools to reach age groups likely to value their offers.
A Chilling Forecast for Online Ads
ICLE also argues that courts should interpret the Unruh Act consistently with Section 230 and the First Amendment.
When an advertiser uses age in an invidious way, liability should rest with the advertiser rather than with a multisided platform that provides neutral targeting tools. Advertisers decide how to structure their campaigns. Google simply lets them select age as one possible targeting criterion.
Treating Google as a co-developer of every ad that uses age would give platforms a strong reason to eliminate age-based targeting altogether. That response would suppress a substantial amount of lawful advertising, which qualifies as protected commercial speech.
Section 230 and the First Amendment guard against this kind of “chilling effect,” in which the threat of liability discourages lawful speech along with potentially unlawful conduct. A rule meant to prevent discriminatory advertising should not make useful, lawful advertising collateral damage.
You Can’t Target Everyone
Product-liability lawsuits against major social media companies have drawn plenty of headlines. This case presents a quieter threat to the ad-supported internet. If the trial court’s ruling stands, platforms may respond by eliminating useful targeting tools and restricting lawful advertising.
The Sixth Appellate District should grant Google’s petition and make clear that a platform does not incur liability merely by allowing advertisers to target ads by age.
Attention is scarce. Making advertising less relevant will not help consumers. You cannot interest everyone in everything—and the law should not force advertisers to try.
