A visitor to a web site is just that: a visitor. Not a unique visitor.

Anyone using a web analytics package is doubtless familiar with the difference, but now it's legally official. A New York Surpeme Court judge made the ruling in favor of WebMD  which has been embroiled in a $350,000 lawsuit with RDA over the subtlties of the terms.

Seems RDA had placed several insertion orders with WebMD, including one that guaranteed WebMD would send 36,000 "visitors" to an RDA-run site.

RDA insisted what the contract actually meant (as opposed to what it actually said) was "unique visitors."

Nonsense, ruled Judge Doris Ling-Cohan, who stated, "the term 'visitors' is unambiguous...if defendant wished to be guaranteed 'unique visitors' to the site, it should have specified such in the agreement."The judge further pointed out that RDA never complained about the traffic to the site when the two parties were still doing business together.

Law Professor Eric Goldman points out that not only is it critical that terms be clearly spelled out in the terms & conditions clauses of contracts between advertisers and publishers, but also notes in his career, he's never been asked to review an insertion order. It's that latter document that defines the payment metric for the ad deal.

Really, it's not so hard to clearly define terms of payments and metrics in what are, for the most part, boilerplate documents.  While it seems patently obvious to anyone working in online advertising that "uniques" differ from "visitors," it almost would seem as if WebMD lucked out with this particular judge.

A few extra dollars invested in legal probably would have saved WebMD what was undoubtedly an extraordinarily expensive and protracted hassle. You might not be so lucky. Take a look at those T&Cs and IOs. Dot the 'i's and cross the 't's.

Rebecca Lieb

Published 10 February, 2009 by Rebecca Lieb

Rebecca Lieb oversees Econsultancy's North American operations.

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Comments (1)

Steve Johnston

Steve Johnston, Founder at Taxonomics

The title suggested a post on the impossibility of 'unique' visitors and some legal precedent that would upset the online advertising world and confound the webanalysts. That's not what I got.

over 9 years ago

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