• Court: Online Ad Contracts Must Specify "Unique" Visitors
  • March 23, 2009
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • In a win for the Internet information Web site WebMD, a New York court has found that the term “visitors” in an online ad contract is not the same as “unique visitors.”

    "The term 'visitors' is unambiguous," Judge Doris Ling-Cohan opined. To ensure that only unique visitors are counted, the parties must specify that expectation in the agreement, she added.

    Last year, WebMD sued RDA International for allegedly failing to pay for ads it had bought on the WebMD site. Under their agreement, RDA promised to pay WebMD approximately $450,000 for the ads. In return, WebMD had guaranteed more than 7 million impressions and at least 36,000 visitors to "WebMD Health Zone and WebMD-related condition centers driving to the www.eucerin.com Web site," according to the court papers. RDA argued that WebMD fell short of its guarantee because it counted each visit separately, even if the same user visited more than once. According to RDA estimates, WebMD met "70-80% of its contractual promises," the decision noted.

    The court ruled in favor of WebMD, finding that the contract did not specify that each visitor must be unique. "If defendant wished to be guaranteed 'unique visitors' to the Web site, it should have specified such in the agreement," the court wrote. It also noted that RDA did not raise its concerns with WebMD while the contract was in effect.