In the 13 years since the Federal Trade Commission released its guidelines for online marketing, a great deal has changed. When first written in May of 2000, internet advertising was a relatively new practice, and internet consumption had yet to reach the soaring heights we see today. Responding to the changing times, the FTC updated the “.com Disclosures” last week, with a new focus on social media advertising. But while the document provides a great deal of guidance, advertisers are still expected to make the toughest decisions.
Desktops, tablets, phones, tweets, Facebook updates, YouTube videos and website popups—it’s well within the realm of possibility that an American consumer views an ad on each of these devices and mediums in a single day. How then can the FTC create overarching guidelines accommodating all the appropriate devices and mediums? Simply, they can’t. So while the FTC does all it can to appropriately apply general rules, the onus falls to the advertisers to tiptoe around breaking them—and if they can’t decide whether or not their advertisement complies with the guidelines, they shouldn’t run it.
For many people, online advertisements have become so ubiquitous that they fade into the background of a website. However, every so often, an ad will catch the eye of a visitor. When it does, the FTC expects advertisers to be on their best behavior. Attorneys on LXBN were quick to note that while FTC documents like these don’t hold the same weight as legislation, the judiciary tends to give administrative guidelines serious consideration in the event of a dispute.
With that in mind, Brian Hurh of Davis Wright Tremaine discussed the content of the FTC guidance, and how it’s changed over the years, on the firm’s Payments Law Advisor:
“The .com Disclosures guide reiterates the importance of proximity and placement, prominence, avoiding distractions, repetition, multimedia messages considerations, and using understandable language. In fact, the substance of the FTC’s message is relatively unchanged since 2000.
However, because the 2000 guide generally addressed the presentation of disclosures on web pages viewed on a computer screen, the FTC now incorporates additional recommendations with respect to disclosures presented on mobile devices and other emerging platforms that have altered the standards for clarity and conspicuousness. “
Of interest to marketers and lawyers on LXBN was the phrase “clear and conspicuous.” As Hurh mentioned, the standards for what constitutes a clear and conspicuous disclosure have changed in this report, and advertisers are expected to keep up with the times. Unfortunately, it’s not as simple as it once was.
Thirteen years ago, browsing the internet with your phone was a thing of the future. Now, smartphones are a hot commodity on the mobile device market, not to mention the variety of tablets and laptops owned by consumers. In their post on K&L Gates’s TMT Law Watch, Brian McCalmon and J. Bradford Currier explain why, in this environment of varying screen sizes and changing technologies, the task of making disclosures clear and conspicuous is more difficult now than ever before:
“With the emergence of smartphones, tablets, and social media, the form and placement of adequate disclosures has become more complicated than it was over a decade ago. For example, with their smaller screens, smartphones can complicate the task of ensuring that a necessary disclosure is clear and conspicuous. The same goes for ads on social media outlets such as Facebook or Twitter that may impose space constraints on advertisers (such as Twitter’s character number limitation).”
Perhaps in an effort to aid marketers, the FTC provided 22 examples of acceptable disclosures in the appendix attached to the guidelines. Unfortunately, 22 examples barely cover the expectations for different screen sizes, and the FTC now expects those disclosures to be clear and conspicuous when communicating on social media platforms as well.
It was that very mention of disclosures on social media platforms that caught the eyes of many LXBN members, including a trio of Morrison Foerster lawyers on the firm’s blog, Socially Aware. Putting together one of the most thorough posts on the network, Reed Freeman, Julie O’Neill and Nicholas Datlowe went over the guidance with a fine-tooth comb. In particular, their post made note of the difficulties advertisers face in making disclosures on social media sites:
“There is no set formula for making a clear and conspicuous disclosure. Whether a particular disclosure meets the standard must be judged in the context of the ad, including the information the disclosure must convey. Notably, the revised Dot Com Disclosures make clear, over and over, and with examples, that space constraints such as those in social media do not relieve advertisers of their responsibilities. Advertisers should consider how important the disclosure is, what information needs to be disclosed, and the extent of the burden of placing the disclosure in the ad when determining the media in which to place it.”
Those difficulties were multiplied when the FTC made clear that it expected advertisers to take republished ads into account. As the lawyers on Hogan Lovells‘s blog, Chronicle of Data Protection, wrote in their post on the disclosures, advertisements made through the use of social media must be constructed in a way that ensures the disclosures are preserved when they are shared:
“Each ad must be viewed on its own, and disclosures must be clear and conspicuous in each ad that individually requires a disclosure. Surprisingly, the FTC extends this requirement to republished ads. “Advertisers,” the guide states, “should employ best practices to make it less likely that disclosures will be deleted from space constrained ads [(e.g., Tweets)] when they are republished by others.” Beyond placing disclosures at the beginning of a space-constrained ad or leaving enough free space in an ad to make sure the disclosure is not lost in republication, the FTC offers little guidance as to what those “best practices” would be. “
The takeaway from many attorneys on LXBN was that the updated guidelines put the onus back on advertisers. Even in light of the inherent complications presented by technology and social media, advertisers are expected to use their wealth of data collected from consumers to know if their disclosures are effective or not. Freeman, O’Neill, and Datlowe explain that if advertisers have any concern over the clearness of the advertisement’s disclosures, the simplest thing to do is just not run it:
“Finally, if it is not possible to make a required disclosure clear and conspicuous in a particular medium, then the advertiser should either modify the ad or not run it. If the limitations of a particular platform make it impossible to make the required disclosures, then an advertiser should not advertise on that platform. This is particularly important in space-constrained ads, such as tweets and other social media.”
As regulations continue to catch up with technology, advertisements and corporate communications will undoubtedly remain a hot topic for the FTC, watchdog groups, and advertisers. To keep abreast of the latest analysis on these “.com Disclosure” guidelines, check out LXBN’s section on the subject.